Can Executive Tinker Court's Directions Through Ordinance? Supreme Court Asks In Plea Challenging Tribunals Reforms Ordinance

"The policy decision of the Executive and Parliament should bind the court. It is beyond the jurisdiction of the superior courts to sit in review of these decisions. The Constitution of India provides for separation of powers in the three organs of State, namely, the Legislature and the Executive government on the one side and the Judiciary on the other side. Just as the Legislature and the Executive cannot trench upon the jurisdiction of the Judiciary, it is not within the competence of the Judiciary to trench upon the powers of the Legislature or the Executive", submitted the AG

It was his case that by reason of the doctrine of the separation of powers, the decision of the Legislature and the Executive is not open to judicial review until there is a violation of fundamental rights or any specific provision of the Constitution or if the law is beyond the legislative competence of that legislature. "Each of the branches of State shall be whole and independent of each other. There will be coextensive rights and power. It is not that the Judiciary is above the other branches", he said.

'Executive Is as much an interpreter of Constitution as Judiciary; Policy decisions are collective process of 500 members unlike judgments of 2/3/5 judge-benches'- AG

"Without pointing out how and why independence of the judiciary is violated (by the impugned Ordinance), vague and general criteria cannot be relied upon. Legislation is broadly the Parliament's jurisdiction, and so is the Ordinance of the Executive, which is also the power of the lawmaking. It is not competent for the court to violate the doctrine of separation of powers to compel the Legislature or Executive to make a particular Ordinance or law", he pressed.

Addressing the contentions raised by the Madras Bar Association, the AG insisted that there is no question of removing the foundation or basis of the judgements of the Supreme Court in framing the Ordinance, as the series of judgments are not based on any existing law- "A question of erasing the basis or foundation of a judgement would not arise unless the court has actually held that the tenure has to be five years. No question of validating the law would arise as it is the exclusive domain of the Legislature and the Executive as to what should be the tenure"

"Your Lordships are not dealing here with rules or primary law. Here, it is the issue of policy. It is a collective process and not a one-person process. When a legislation is passed, it is the collective will and collective decision of 500 or 300 members, unlike in the court where the judges are sitting in 13 benches of 2 or 3 judges. In court, the thinking is of three judges or at the most five judges as to what the Constitution is. There is a lot of difference. The former has the advantage of standing committees which examine witnesses. It is not a question of one hour of arguments and then the judgement is given by three judges or five judges. A Proposal goes to the undersecretary, to the directors in between, to the additional secretary, the joint secretary, to the secretary and the Ministry. The Madras Bar Association keeps coming up in a challenge again and again and again. When the CBI is deciding whether a case is to be filed or not, every member at the top from the DIG onwards is involved. By the time it comes to be filed, it is with two years' delay", argued the AG.

'No express provision on independence of judiciary in Constitution; Can't be raked up to strike down a law'- AG

Earlier in the day, the bench had asked whether, by passing an Act or Rules or an Ordinance, the Legislature and the Executive can tinker with directions of the court under Article 142; whether, when considering an issue of policy, the Parliament is competent to make a law and deter the court's directions.

The bench had indicated the 2000 US Supreme Court decision in Dickerson v. US. [In Miranda v. Arizona (1966), the SCOTUS held that statements of criminal suspects made while they are in custody and subject to interrogation by police may not be admitted in court unless the suspect first had certain warnings read to him beforehand- that the suspect has the right to remain silent during the interrogation, that anything he says to the police may be used against him in a court of law, that he has the right to legal counsel, and that if he cannot afford legal counsel a lawyer will be provided for him. In 1968, Congress passed a law that purported to overrule it. This statute directed federal trial judges to admit statements of criminal defendants if they were made voluntarily, without regard to whether he had received the Miranda warnings. The question before the Supreme court, "May Congress legislatively overrule Miranda v. Arizona and its warnings that govern the admissibility of statements made during custodial interrogation?" In a 7-2 opinion delivered by the Chief Justice, the Court held, "Miranda announced a constitutional rule that Congress may not supersede legislatively. We decline to overrule Miranda ourselves"]

The question was if the directions of the Supreme Court of India in Sampath Kumar, R. Gandhi, Rojer Mathews and the Madras Bar cases as regards the tenure, age, panel, SCSC etc could be said to be 'constitutional rules' in the same sense as the Miranda rights.

"There is the Fifth Amendment to the US Constitution which says that no person can be a witness against himself. When you say Miranda has been violated, that is what has been violated. They are not saying that by violating Miranda, you are violating the constitutional rule!", argued the AG.

The AG continued to submit he finds that the Court has mentioned the independence of the judiciary repeatedly in all the 5 judgements on the instant issue. He advanced that Independence of the judiciary is not expressly written in any provision of the Constitution; while we find fundamental rights etc, but this is something which has been deduced from the fact that conditions of service of judges cannot be violated, that they can be removed only by impeachment etc. It was brought in in further evolving the Basic Structure of the Constitution, but it is not a clause in the Constitution.

"Because this was an uncharted area, when an amendment to the Constitution was being made, a question arose whether Your Lordships would allow a Constitutional amendment to violate democracy? There, Your Lordships held that there are certain basic pillars on which the Constitution stands and destroying them cannot be allowed because no Constitution would allow you to destroy the very creator of your powers. That is when the principle of Basic Structure came in. Independence of judiciary is part of the Basic Structure, but my submission is that Your Lordships may not rake this up for the purpose of striking down a law made by the legislature. A law can be struck down only if it violates the fundamental rights or any provision of the Constitution or is made in excess of legislative competence", argued the AG.

Justice Rao pointed out that in the constitution bench KT plantations case (2011), CJ S. H. Kapadia said that basic structure can be a ground for striking down a law also. Justice Bhat added that right from Indira Gandhi (1975), it has been said that Basic Structure theory applies to statutes.

"But having said that, would it be right at this point of time to say that independence of the judiciary is something which is outside the Constitution and because you can't discern it or you can't pin it down to any provision, that can't be a ground (for setting aside a law)? We can't always put it down to this. For example, there is a specific provision of Article 14- quality of justice which is delivered to a citizen is radically different, especially when you take independence away from the courts. Independence would be directly in Article 14 also...the enforcement of the Constitution is not only through the higher courts but also through the lower courts. For example, Article 21 and the other functions which are now parcelled out to the tribunals", observed Justice Bhat.

"Over the course of years, the Supreme Court has interpreted many provisions and expanded its own jurisdiction and its competence has gone far beyond what any other common law court has done. I have to defend the law and what the law believes should be in the interest of the State. Please show me which part of Article 14 is being violated if you say independence of judiciary goes to Article 14?", said the AG.

In response to this argument of the AG as to which facet of Article 14 Basic Structure could be alluded to, Justice Rao indicated the 2010 judgment in R. Gandhi's case where it was held that independent judicial tribunals for determination of the rights of citizens, and for adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the Rule of Law, and that the essence of equality is that it must be capable of being enforced and adjudicated by a judicial forum independent of the Executive.

"The problem is that there are express provisions of the Constitution. If you are violating any of them, the law can be declared void. If Your Lordships go outside the provisions and look at principles, then both Executive and the Legislature are entitled to know what are the limits within which they have to function. Principles like independence of the judiciary or constitutional morality, the Parliament making laws will not be able to see", pressed the AG.

On Wednesday, the AG advanced that 'constitutional morality' is a concept which is very difficult to grapple with. He indicated that in the Sabarimala constitution bench judgement, Justice D. Y. Chandrachud invoked constitutional morality to strike down the practice which prevented women of a particular age from worshipping in the temple, while Justice Indu Malhotra relied upon constitutional morality to uphold the practice- "Shri Ambedkar mentioned it in the constitutional debates in a totally different context. But now it has been used as a principle of law which is treated as strong as any provision of the Constitution itself. Just as Your Lordships evolved Basic Structure for the purpose of constitutional amendments, this has also become the ground for laws to be set aside...Two different and opposite views can be arrived at by this principle. So it is very uncertain. I urge Your Lordships to not go on this principle"

'We are not mindless; We have done better than what the Court wanted'- AG

The AG advanced that the question which the bench has to decide is whether a minimum prerequisite of 25 years' practice as advocate or a minimum age limit of 50 years or tribunal members being given housing allowance equivalent to the Secretary to the government of India or a Cabinet Secretary etc are matters traceable to Article 14.

Justice Bhat observed that it may not be so per se- "If you start seeing each one in isolation, then nothing violates either the basic structure or the conflict with the independence of judiciary. The pattern of legislation is what we see. The word used is 'creeping encroachment'. 50 years by itself is nothing wrong, 25 years by itself is nothing wrong and that HC judges are being treated as equivalent to Secretary is nothing wrong. What we see is what is the justification. You can't simply say that the tenure will be 4 years and not 5. For all these years, the pattern was not even five years but uptil the age of 62 years. So why 5 years now? Today, it is in the Parliament, but so far it has been through rules. When you are substituting something, there has to be a rationale"