Judiciary Today Is Very Strong And Not Concerned With What Government Thinks Or Feels: Attorney General KK Venugopal

"After 1967, there was a period of confrontation between the judiciary & the Parliament. However, we also had the emergency which was imposed in 1976 which was an attack on the Supreme Court. Now it's a part of history that an emergency was declared and the judiciary was in a state of what has happened, however today we have a very strong judiciary that is not concerned with not what the government thinks or feels. It acts on its own judgments which include areas that are prohibited. It also says to the Law Officers that this is not correct and that suggests the law that Parliament should pass and not pass. Clearly, impeding the powers of the Legislature," said Attorney General for India KK Venugopal.

The webinar organized by MK Damodaran Foundation, Ernakulam was inaugurated by the Chief Minister of Kerala Shri Pinarayi Vijayan and the keynote address was delivered by Attorney General for India, KK Venugopal. Justice T. B. Radhakrishnan, Former Chief Justice of Calcutta High Court, Advocate KK Raveendranath, Former Advocate General, President, MKD Foundation, Advocate Thomas Abraham, President, Kerala High Court Advocates Association, Joint Secretary, MKD Foundation and Advocate M Sasindran, Secretary, MKD Foundation also spoke at the webinar.

Attorney General for India, KK Venugopal started his address by reflecting on the qualities of Former Kerala Advocate General M.K Damodaran.

"As a young man, MK had dealt with sensitive cases. As a result of his environment, he was even jailed for 8 months during the emergency. Despite his interest in politics, he was first and foremost a lawyer and a fine man at that, outshining many of his contemporaries with intellect, hardwork and perseverance," AG added.

AG also added that late MK Damodaran was always interested in the well being of the legal profession & worked hard to gain knowledge.

Judiciary occupies a position of preeminence in public perception unlike other organs : AG

AG commenced his lecture by emphasizing on the scheme of separation of powers laid down in the Constitution.The AG in his address said that presently, the public perceived that higher judiciary in the country occupied a position of preeminence which is not yet attained by any other organs in the country. The AG commented that such a position is not enjoyed by any other judiciary in the world.

Founding fathers had expressed concerns about giving vast powers to judiciary :AG

Putting forth the ideologies of the founding fathers of the Constitution such as Shri TT Krishnamachary, Sir Alladi Krishna Swami Iyer and BN Rao of the Constitution, AG said that, "This is however intriguing that the founding fathers had a deep suspicion of creating something equal to a monster which would turn into its creator. Creator meaning, the Constituent Assembly & later the Parliament itself. During the deliberations of the Constituent Assembly, Shri TT Krishnamachary expressed dark forebodings. He said "It might be that if we give the judiciary an enormous amount of power, a judiciary which may not be controlled by any legislature in any manner, except by the means of ultimate removal, we may perhaps be creating a Frankenstein's monster, which could nullify the intentions of the framers of the Constitution".

The AG also quoted Sir Alladi Krishna Swami Iyer as saying "doctrine of independence cannot be raised to the level of a dogma so that judiciary can function as a superior legislature or a super executive".

He added that even BN Rao had doubts about arming the judiciary with vast powers and had given a warning to the Constituent Assembly that "Courts manned by an irremovable judiciary not so sensitive to public needs in the social or economic sphere as the representatives of  a periodically elected legislature, have in effect a veto on the legislation exercised at the instance of a litigant".

Years of conflict between judiciary and executive

Quoting Justice Hidayatullah's opinion in Golak Nath v. State of Punjab, Attorney General KK Venugopal said that the starting years of the Supreme Court were years of conflict and very many judgements particularly from land reforms were struck down and had to be neutralised by the Parliament by amending the Constitution.

On the point that there were many areas wherein the Supreme Court had not intervened with regards to the stern provisions of the Constitution, AG cited the example of appointment of judges of Supreme Court and High Court.

"Art 124 of the Constitution said that the President will appoint Judges in consultation with the Chief Justice & other judges of Supreme Court. What is it that has happened? First, by judgement, it was said that the word "consultation" should not be treated as "concurrence".This was for the simple reason that if you go through the debates, the very suggestion was put forth by the amendments saying why consultation & not concurrence," AG said.

Emphasizing on the role played by the Apex Court in Golak Nath v. State of Punjab and Kesavananda Bharati v. State of Kerala, AG remarked that it was because of these judgements that our government did not turn from democratic to autocratic.

"Golak Nath judgement was a major blow for parliamentary supremacy. My father started with the theory of basic structure in that case and it was based on an article written by a German Jurist. He read the entire article in court to say that it was his thought that he was putting forth in Court. Considering this, the principle of prospective overruling was evolved. It was then that the matter was then taken up and the validity of the 24th CAA was discussed in the Kesavananda Bharati case. Our legendary NA Palkhivala argued brilliantly & it was because of this judgement that we did not end up turning our democracy into autocracy," AG added.

On repercussions post delivering of Kesavananda Bharati v. State of Kerala which resulted in the appointment of Justice AK Ray, AG said that,

"It had repercussions. Justice Sikri delivered the judgment. But 3 of the very eminent judges (Justice J M Shelat, A N Grover and K S Hegde) all had to be superseded & the result was AN Ray became the CJI."

On Tribunals Act controversy

The AG also hinted at a possible confrontation between judiciary and the Parliament over the recently enacted Tribunals Reforms Act. The AG said that the term and minimum age qualification of Tribunal members were a matter of policy, which cannot be interfered with by the judiciary.

Narrating the several instances of back and forth between the Supreme Court and Parliament over Tribunals Reforms, as happened in cases of Rojer Mathew and Madras Bar Association, the AG said.

"Now this means that at a certain stage even Parliament wonders, are we not having any powers if the judiciary is interfering to this extent? It is a matter of policy, whether four years or five years. The policy cannot be interfered with. Similarly 50 years", the AG said. These comments assume relevance in the backdrop of the Supreme Court asking the Union Government yesterday why the Tribunals Reforms Bill was introduced with the same provisions struck down by the Madras Bar Association judgment. A bench led by the Chief Justice of India had asked the Solicitor General to provide the reasons stated the Ministry in moving the Bill.

The AG said at the webinar yesterday "it would be worth waiting and watching" if there will be a fresh round of tussle over the Tribunals Bill.

With a mild chuckle, the AG said :

"Therefore, there would be a confrontation perhaps, but I hope not, as I started by saying that they both exercise powers conferred to them by the Constitution. Therefore, it would be worth waiting & watching."