India Remains A Democracy Because Legislature & Executive Are Kept In Check By Judiciary : Justice L Nageswara Rao

The 'war cry' of politicians about Parliamentary supremacy is wrong and India remains a democracy because the Executive and Legislative powers are kept in the check, said former Supreme Court judge Justice L Nageswara Rao. He reminded that it is the Judiciary which is exercising that check on the Government and the Parliament.

He was delivering his address at the All India Lawyers' Union National Seminar held at Hyderabad recently.

“The Chief Justice of India has recently said that Kesavananda Bharati judgment(which laid down the Basic Structure Doctrine) is the north star of Indian Constitution. I agree with him. We are what we are today, still enjoying this democracy only because the Parliament is in check. Only because the executive power is in check. And who is doing it? It is the Court. I am not saying that Court is supreme. There is no organ that is supreme in this country. It is the Constitution that is supreme. So, this war cry of politicians saying that parliamentary supremacy, according to me, definitely is not correct. ”

The seminar was on the “Constitution & We the People” and Justice Rao addressed the audience on ‘Revisiting the Basic Structure’.

Justice Rao commenced his address by telling the story about the basic structure. He started with how prior to India becoming independent on August 15, 1947, the constituent assembly in 1946 December started functioning . The Constituent Assembly appointed a drafting committee under the leadership of Dr BR Ambedkar, and B.N. Rau was given the task of drafting the Constitution and placing it before the drafting committee. Rau visited various countries in the world and then borrowed provisions from several countries. After about two years and eleven months, the Constituent Assembly approved the Constitution on 26 November 1949, which is now celebrated as Constitution Day.

He thereafter stated that though this is not connected to the basic structure, the speech made by Dr. Ambedkar on 26 November 1949 is memorable. In that, inter-alia, Dr. Ambedkar had said:

“As long as this country is divided on the basis of caste, religion, and region, there is no independence.”

Taking a cue from this, Justice L. Nageswara Rao stated, “All of us who are educated should at least project ourselves to be civilised. It is high time that we rise above all these considerations of caste, religion, and even the disparity in society has to be forgotten. All of us are equal.”

Before proceeding with the explanation of basic structure and landmark judgment in the case of Kesavananda Bharati, Justice Rao drew the background. He spoke about how part three of the Indian Constitution that guarantees to all the citizens of this country, certain fundamental rights that are basic rights for the existence of a human being. This includes Article 32 that gives right to the citizen of India to approach the Supreme Court whenever there is a violation of a fundamental right. Justice Rao reiterated that how Dr. Ambedkar described the same Article as being a heart and soul of the Constitution because it gives the power of judicial review, and it places checks and balances on executive power. “These fundamental rights are very basic to a democracy”, Justice Rao stated.

Moving forward, he spoke about part four of the Constitution which contains the Directive Principles of State Policy (DPSP). This part casts a duty on the state to ensure the welfare of the people. “Both part four and the fundamental rights are like two wheels in a charioteer.”

Talking about the tussle between the Parliament and the Court, he said: “The Parliament says that I am making laws in part four to benefit the people, why should the Court interfere on the ground that there is violation of fundamental rights. On the other hand, the theory in the protection of fundamental rights is that there is basic right that is given to the society as such, and individuals and you could not be permitted to trample those rights.”

Thereafter, he talked about Article 368 of the Indian Constitution (Power of Parliament to amend the Constitution and Procedure therefor). Elaborating on the need of this Article he cited Thomas Jefferson’s Quote (3^rd U.S. President): “each new generation has a right to choose for itself the form of government it believes most promotive of its own happiness.”

Justice Rao stated that with changing times, changing policies and changing standards of life there might be a need of parliament to exercise this power of amendment.

Basic Structure And Kesavananda Bharati’s Case

At this stage, it is important to note that the Kesavananda Bharati judgment (Kesavananda Bharati v State of Kerela (1973) 4 SCC 225) which was delivered on 24 April 1973, is a landmark judgment of the Supreme Court of India. The case was filed by Sri Kesavananda Bharati, the head of a Hindu religious mutt in Kerala, challenging the constitutional validity of the 24th, 25th and 29th Amendments to the Indian Constitution, which sought to curtail the powers of the judiciary and the fundamental rights of citizens.

The Supreme Court, in a historic 7:6 majority decision, propounded the basic structure doctrine of the Constitution, which holds that certain fundamental features of the Constitution, such as democracy, secularism, federalism, and the rule of law, cannot be amended by parliament. The Court also held that the power of judicial review is an integral part of the basic structure of the Constitution and cannot be taken away by Parliament through constitutional amendments.

Discussing the basic structure and parliament’s power to amend the Constitution, Justice Rao stated: “You cannot amend the constitution to destroy the Constitution. You cannot abrogate the Constitution. Which means, that amendments can be made but we cannot nullify the Constitution…. Abrogation of Constitution means that there are certain elements in the Constitution which you call them basic feature/ basic structure, those cannot be touched.”

He explained as to how a debate started pertaining to what are the basic features. Referring to the preamble, he says that it is also a basic feature. “This preamble is the soul of the constitution.”

Talking about the contents of the preamble he said:

“JUSTICE is not justice that is done in Court. It is social, economic and political justice…. LIBERTY is something which is very important for the existence of a human being, a meaningful existence, it(preamble) speaks about liberty of thought, expression, belief, faith and worship. EQUALITY is something that we have been very proud of in this country. But I am not very sure whether there is equality in the society even today…The last one which is the most important provision here is FRATERNITY…. fraternity is universal brotherhood. It is all of us thinking that all Indian are one.”

Addressing the audience, he posed a question of What is basic feature? To this, he answered, it is that the Constitution cannot survive without these features. These are essential elements of the Constitution. Basic structure is something which the Court has been taking resort of to protect the judicial review and the rights of citizens to go to the Court and get Justice.

Israel’s Example

Speaking about the turmoil in Israel, Justice Rao explains that how Benjamin Netanyahu, Prime minister of Israel, brought out ‘override clause’ which curtails the power of High Court of Justice (Israel’s Supreme Court) and will allow the parliament to override the judgment of the Court. Moreover, Netanyahu also wanted to revamp the appointment of judges by including more members from the executive in the judicial appointment commission.

“He (Netanyahu) also wanted to interfere with the appointment of judges. In Israel, there is judicial appointment commission which consists of nine people….in that commission, six persons are either judges or from the fraternity of lawyers…three are from the executives. He wanted to reverse that and wanted to have more people on the executive so that the selection of judges will on the hands of executive.”

However, the awareness of people was carried out by certain democratic institutions and there was an agitation. The citizens of Israel started taking it to the roads. Justice Rao mentioned that how every Wednesday there used to be some sort of a demonstration where people were saying that citizens' rights have to be protected. These demonstrations continued for about 36 weeks; it was almost reaching a crescendo at some point.

Notably, Justice Rao thereafter posed a question: “How many of you would think that such a thing would happen in this country? If at all, there is some law that is made now saying that there can be no case against the Prime Minister or another law that is made saying that Supreme Court’s power is taken away or the High Court’s power are taken away or that anything that is done by the parliament would be supreme, would we take to the streets?”

He answered: “I don’t see our reacting like this all. All of us are very well educated, all of us know that we have rights to protect, all of us know the importance of the Constitution, but still we do not question because we haven’t learned to question. I think this is something which we should imbibe in ourselves. Whenever there is an act which is oppressive, we should be the first to raise our hand which we never do. So, the lesson that we learn from Israel is that all of us, not only should react but also create awareness among the people about the importance of constitution and basic structure.”

(In this context it may be noted that Justice Rao himself had visited Israel in the midst of the protests and later said that he saw "democracy in full swing there")

'Saw Democracy In Full Swing' : Former SC Judge Nageswara Rao On Protests In Israel To Protect Judicial Independence

Inspite of such demonstrations, Israel’s parliament passed this law recently in June, though scaled down, is to the effect now that though the Supreme Court has the power of judicial review over parliamentary legislations, it cannot set aside any legislation on the ground that it is unreasonable. “Which means that you're clipping the wings, it says that your powers are restricted.,” Justice Rao remarked.

Talking about the second change made by the Netanyahu’s government he said, “it is related to exactly what Prime Minister Indira Gandhi did then.” A law has been brought out which says that the parliament would decide as to whether a person should be Prime minister or not inspite of some cases being there against him/ her.

These laws were challenged in High Court of Justice. The arguments were heard by 15 judges. Smilingly, he says that, during the hearing, the questions that were put to the advocate, representing Prime Minister, were exactly the same questions that were put to the attorney general of India when Kesavananda Bharati was being heard.

Concluding his address, he said: “All these years people are not talking about basic structure. All of a sudden there is a debate on basic structure for the past one year. How is it all has started?... The debate is because again the parliament wants to make some laws, take them out of the reach of court. Again, revisit the debate that was there 50 years back because its is 50 years before Kesavananda Bharati was decided by the Supreme Court. The problem in this country, as I see, is that the constitutional functionaries do not stay within their limitations. We have speakers, after becoming speakers towing the line of political parties. Day in and out you might be seeing the speakers speaking on behalf of the ruling party. Making comments in favour of the ruling party. They are no more independent.”

Talking about AG Perarivalan versus State (2022 SCC OnLine SC 635), wherein the Bench comprising Justice Rao ordered release of AG Perarivalan, convict in the Rajiv Gandhi assassination case, invoking powers under Article 142 of the Constitution, he deliberated:

“Law is the same for everybody. Whether you are the Chief Minister, whether you are the Prime minister or a person who is a labourer, when you are talking about equality which means equal protection of laws. Merely because you are accused of grave offence it does not mean that you are not going to get protection of laws. Liberty is applicable to every person. There cannot be any discrimination at least by the Courts. When the Court is exercising powers like this, you look at such instances where constitutional functionaries also go overboard…..”