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AKA-SSS/1R/2:30

The House re-assembled after lunch at thirty minutes

past two of the clock,

THE VICE-CHAIRMAN (SHRI KALRAJ MISHRA) in the Chair.

...

PRIVATE MEMBERS' BUSINESS

RESOLUTION RE: REQUIRING SUPREME COURT AND HIGH COURTS NOT TO DECLARE ANY LEGISLATION AS NULL AND VOID

AND STRIKING DOWN THE SAME UNLESS DECLARED SO

UNANIMOUSLY BY A STIPULATED MAJORITY OF JUDGES RESPECTIVELY (CONTD.)

0 ϳ (֕ã֮) : ֳ֬ , ֟ 18 ß ֕ ֳ ֮֮ߵ ֤õ ִָ֮ ֵ ָ ֤ ã֟ ֵ , ָ ֮ ׾ָ֓ ֱ ֲ , ׾ֵ ֮ ׾ָ֓ ß , ֜֟ , ִ֣Ԯ ֣ ֮ ֟ ָ

, ֯ , וִ ֵ "֤ ָ ׸ ׾֮֬ ָ ִ֟ ֵֵֻ ֵֵֻ ָ, ־ֵ ãן ֲ ִ֟ ֵֵֻ ִֻ ֟ ֵ֬߿ ֵ֬߿ ֵ֯ߚ ֵֵֻ ִֻ ӓ ֵ֬߿ ֵ֬߿ ֵ֯ߚ ־ִן ׮Ե , ֣ ֤ ָ ׸ ׾֮֬ 段 ֟ ֋ ֋օ" ֻ ػ ֻ ִֻ ֤ ׸ , ׾֮֬ ׸ , ו ָ և ֣ ִֻ ֲ פև פ ֲ ־ֿ ֤ ָ ֵ ֋, ָ ֓ ֋

, , ֕, ׾ָ֓ߵ ־ֻ , ãן , ו ָ ֓ ׮ ׮ֻ ֮ ־ֿ ('1s/mcm' ָ ָ)

MCM-NBR/1S/2-35

0 ϳ (֟) : , ֤ ֮ ׸ , , ֮ ֵ ֵԤ פ ֕ ֤ ָ, ָ ֲ ֛ ֻ֟ , ׾֮֬ ֵ֮ ֟ , ֮֟ ן׮׬ ָ ִ֟ ֵֵֻ ֵֵֻ ָ ֋ ױ ֮֟ ״ֻ߅ ֵԯ׻ ֵԤ ־ֻ ֵ֯׻ ֵԤ ־ֻ ָ Ͽ֮, ׻ ֵֵֻ ֵָ ֟ , ִ ֟ , ֻ ֟ , ֻ ָ ֤ ׾֮֬ ֳ֋ ׻ ֻ , ׻ֵ ֮ , ָ ָ ָ ֵ ָ ן ֵפ ׸ִ ׻֋ ֕ ֲ ֛ ׵֟ ֵ֯׻ , ָ ֵ֯׻ ֮ ֛ ִ֮ ֮ ֻ֟ ָ ׾֬֟ ׾֮֬ , ָׯ֟ ׾֮֬ , ֵ֯׻ ׾֮֬ , וִ ָ ã , ־ ã , ã ִֵ , ׻֋ ־ֿ ־ã ׮׿֟ , ֤ ׸ ׾֮֬ , ֲ և 5 ֵ֬߿ ߴ 7 ֵ֬߿ ״ֻ ֲ ִ ־ִן ֻ , ֲ ֋ , ־ã

, ֕ 0և00 ֮ ד ֵו֟ , ֟ ֮ Ù әÙ ׻֋ ָ ד֋ ֟ ָ ãן ֣ þ֟: ֣ ֤ ׸ , ׸ Ӥ , ֮֮ ֵ Ӥ פ ֋, ֵԾָ Ϥ֟ , ״֛- ߻ ֮ פ , ֮ פ , ִ ֮ Ӳ׬֟ , ָָ , ֻ , ־ã , ִ , ָ ִ ֮֮ߵ פ ׮֤׿֟ ָָ Ͽ֮ ִ ֯ , ָ ֣״ ֋, ֮ ֟ օ ִ֟ ִ֮ ָ ֋օ ֵָ ָ ָ ֮և ֋ Ӥ ֋ ָ , ֵ ֻ ָ ׮׿֟ ן ϳ־ ֛, ן ָ ֛օ

, ֳ ֮֟ ֕ ׾׳֮ ֻ֟ ָ֤ ִֻ ָ- ֤֤ ֮ ִ߮ Ӳ׬֟ ִֻ ״֟ ֛ , - ״֟ ֛ ֵ׵ ֻ֟ ָ ִ ֤, ָ߲ ֤ ֻ֟ ֌ ֙-֙ ֟ ֟ ֮ ֮ ך ֵ , ߻ ֮ ֵ , ֮ ָ֮׿, ֮ ִֵ, ִ ֤ ֟ ָ ױ ֵ ãן ֵ ׻֋ ֮ , ֮ ϟ , ֮ ֌ ֙, ֮ ִֵ Ӿֵ ױ ָ ֵ ״ֻ ֟օ , ָ ָ ֵֵֻ , ִ֟ ֵֵֻ , ־ã ָ ֮ ָ ֣״ ׮֤׿֟ ׮ֻ֓ ֻ֟ ֮և ֋ ߑ ׸ ֵ ״ֻ, ִֵ ָ ֵ ״ֻ ־ã ֻ ֮ ֮ ׻֋ ֜ ֵ օ , ֕ ֮ ֮ ֵ , ׸֕ ֮ ֵ ֮֯ן׮׬ֵ ֲ ֤ , ׾ֵ֬ , ָ יׯֵ , ָ֓ ִ ֟ և ָ ֮֮ߵ ֵֵֻ ָ , ָ כ ָ, ָ פ ן ָ ֟, ֮ , ָ ־֤ , ־֤ , ֮֯ן׮׬ֵ , ֟ ָ ָ ָ ָ ֟ , ֮µ , ֓ ֟ , ֻ֟ ֟ (1t ָ ֿ:)

SCH/2.40/1T

. ϳ (֟): ָ ִ ֋ ֮ , ױ ֯ ֋ ֤ ִֻ , ֵԯ׻ ָ ֵ ֮ ֻ פև և, ï ָָ ָ ֵ ֮ ׸ , ϴ֟ , ֵԾ ևԅ ֕ ֤ , ׾ֵ֬ , ָӓ ֮֯ן׮׬ , ߾֮ ֮ פ, פ , ֟, ֟ ״ֻ֮ ֟ ִ ֮֟ ֮֟ ָ ֮֟ ߓ ָ֟ ֮ ݮ ָ ֛ ֵ ֮ ֵ , ֤ ־ ֟ ױ ־ ׸ ֵ ֟ ָ ֮֟ ֿֆ ϟ , ֳ ֟

Ӥ ָ֬ ֋ ֲ ָ֓ ־ָ ָ יֵ , ֟ כ, ֵԯ׻, ֵ֯׻, ֲ ӡ ̲֕ ßִ , ־ֿ ֛ ָ -ָ ׻֋ ֕ ָ ֛ ָ ֟ , ָ ׌֟ ֵ ֮֟ ־֮֋ , ֋ , ֲ ״ֻ֟ , ִֵ Ͽ ֟ , ֲ ָ֬ ָ ָ ֟ כ ֣ ֮ ָ֮ - ֙֋ , ִ ֙ ָ - , ־ ִϤ׵ ֮־ , ׻֋ ֮ וִָ ִ ֙ֆ ߕㆻ כ , ֻ ևԻև , ָ-ָ - פֵ ֟ ֤ ֵ ֮-֮ ָ-ָ ϤԮ ֟ ֻ ? ִ֕ ֻ ? ָ֮ ״ֻ ? ֻ ֮ ִָ֓ ָ ? ָ ß ֯ ߕ ֟

֕ כ ֮ ן׮׬ֵ , ֮ ָ֓ ָ ׾ָ֓ ֕ ֵ֯׻ ׬ָ ֮֯ן׮׬ֵ , և , ԤԮ , ֯ ֵԤ ׮׿֟ ֮ ־ָ ָ ֮ ן׮׬ֵ ־ֿ ֛, ־ֿ ֤ ָ ß־ ׾ָ֓ ׻֋ ֵ ֋ ָ ׾ָ֓ ־ֿ ֛

, - ־ֻ ָ כ ִָ֓ ו ָ ßן , ֵ׬֯ןֵ ־ָ ֵ֯ ϳ׾֟ ? Ӥ ׾ָ֓ ֮ ־ֿ ָ ֮֟ ߕ ֟ ֟ פ ִ߮ ӲӬ ִֻ , ԙ ִֻ , ׿ָ ִֻ ־ ִֻ ֯ ׌ ֟ ִ ֻ֟ ׸ ן ֵ ִ ׬ ד פև ֵ ֤֯ ֳ ׻֋ , ָ߲ ߸ , ӡ ֲ ֛ ֯ ׌ ִ ֲ ֤ , ֲ ֵ ֲ ׻֋ ֲָָ , ָ כ ִֻ ևԻև ָ ֵֵֻ ד פև ..... 1U/SC ָ ָ

SC/PK/2.45/1U

0 ϳ (֟) : ֲ ִ ֤ ֮ ֋ ֮ ִֻ ? ԙ ׿ָ ִ߮ ִֻ ָ ִ , ־և ָ ָ ֲ ֯ ׌ ָ֟ ִֻ ֟ כ ϓ׸-׸ ֲ ? Ͽ ֛ ִ֟ ָ ֮ ־ֿ ӟ , ׯ֔ ָ ׾ֵ ָ ֮ ׾ָ֓ , ֻ ֮ ֻ֟ ֮ ֕ã֮ ׾֤ ֆ ָֻ֟ ִֻ ֛ ָ֟ פֵ ֵ, ֛ ן פև ֵ -Ӧ פ ֵ ֵ, ֕ ֵ ֵ߅ ָ֟ , ׾֤ ֆ ֣ ָֻ֟ ִֻ פև ֵ , ָ ֮֮ߵ ֻ֟ ֆ ߛ, ֣ ָֻ֟ ӲӬ ִֻ , , ָ߲ ִ ֋ , ֛ ׿ ֻ֟ ߻ ֟ , ִֻ ־ã ִֵ ִ ֮ ָ֟ פև ֋, ֮ ߑ ֵ ״ֻ , ִ ֤ ִ֮ ֵ ״ֻ, ֮ ֵԤ ׮׿֟ ָ ׵֟ ֵ֯׻ ֵԤ ֮ , ן ֺ ֣-֣ ֵԯ׻ ֵԤ ֮ ֮ , ֲ ֮-֮ ֵ ָ , ָ ãׯ֟ - ӟ ִ֣Ԯ ֮־֤ (ִ֯)

DR. GYAN PRAKASH PILANIA (RAJASTHAN): Sir, I am grateful for your kind indulgence to permit me to speak on this Resolution. Sir, this Resolution is thought-provoking, but it will be a sad day when this Resolution which circumscribes the autonomy, the authority and the independence of Judiciary would be accepted. The threat that Judiciary will dictate such kind of orders as will negativate the sovereignty of Parliament, I think, Sir, is ill-conceived. Our Constitution has laid down the fundamental principles of separation of powers where the executive, the legislative and the judiciary have their distinct functions, their distinct roles and their distinct usefulness. I think nowhere in the world such kind of a rule or law or circumscription will be there that Supreme Court, the highest judicial authority in the country, should pass some kind of a judgement only with a Bench of five judges, or, three judges, or, seven judges, or, nine judges. They have their own laid down procedures, but nowhere in the world such kind of circumscription is there. The Judiciary is independent, the Executive is independent, and the Legislature is independent in their own sphere, but none of them is sovereign. Sovereign is the Constitution of the land, sovereign is the basic law of the land, and all these three organs of the State have to work according to the Constitution, and if they do not act according to the Constitution, their action will be ultra vires. So, adopting this Resolution will appear ridiculous. Unfortunately, we are assailing the Judiciary here which has no representative in this august House.

(Contd. by 1W/PB)

PB/1W/2.50

DR. GYAN PRAKASH PILANIA (CONTD.): They can't defend themselves. But it is a misconception that the Judiciary is there to do something against the wishes of the Legislature; it is not that way. And, the Judiciary never claims it is infallible. Very recently, the Chief Justice of Supreme Court had declared publicly that 'we don't claim that our judgement would not be wrong, but whatever is there, that is final.' That has to be accepted. So, I do not think, Sir, we will be doing glory to this august legislative House by passing such kind of Resolutions and doubting the very integrity of our highest Court which is recognised throughout the world as one of the best of the courts, whose judgements are held in high esteem worldwide, in all judicial circles.

So, I, with all appreciation for Shri Laxman Naik for moving this Resolution, humbly submit that it will be a sad day when such kind of Resolutions will be accepted, and, Sir, I strongly oppose it.

Thank you very much for having given me this opportunity.

(Ends)

DR. ABHISHEK MANU SINGHVI (RAJASTHAN): Sir, I congratulate the hon. Member, not so much on the legislation he proposes, not so much on the wording, but on the spirit which animates and lies behind it. I think, the spirit is important to be appreciated. What is the idea? The idea is to ensure that collectivity of decision-making will give us a better decision. If two heads are better than one, then three and five heads are normally supposed to be better than two. It is interesting that in the apex court, the Supreme Court, there is a rule from Independence till now that no Judge of a single Bench can hear matters. That is not so in the High Courts and the lower courts, but in the Supreme Court, a single Judge cannot constitute a Bench for any matter, except some very small, inconsequential chamber matters in lunch time. Except that, it has to be minimum two Judges. Now, the spirit is the same, as the Resolution proposed by my friend. The spirit is that if you expand the decision-making base, you are likely to get a better decision. But let us apply it to the issue which the hon. Member has raised. The issue is, in our system, there is a hierarchy of laws. At the top stands the Constitution of India. Below the Constitution of India stands a statute of Parliament, legislation. Below that stands delegated legislation, namely, notifications or rule-making powers. Below that stands executive orders and so on and so forth. Now, the hon. Member's spirit behind the Resolution is illustrated by a simple thing. When the Supreme Court or the High Court decides to consider a constitutional amendment and its validity or otherwise, it normally constitutes a Bench of five or seven Judges. For example, in the famous basic structure of the Indian Constitution case, Kesavananda Bharati, we had the largest Bench ever, 13 Judges. Thirteen have never sat before. Prior to that in Golaknath's case, which was overruled by Kesavananda Bharati, you had eleven Judges. What is the idea behind this? The idea is that human beings, including Judges, are necessarily fallible. They are necessarily prone to error, as all of us are, because to err is human and to forgive and forget is divine. Therefore, you must have more and more people participating in important matters of moment, including matters involving high constitutional principles or legislative principles. (Contd. by 1x/SKC)

1x/2.55/skc

DR. ABHISHEK MANU SINGHVI (CONTD.): So, that is the spirit behind my friend's Resolution. If you apply the hierarchy which I have just said -- where the Constitution has stopped, Legislation comes next and below that comes a whole range of delegated legislation -- then it is very important that legislation be not struck down casually, legislation be not struck down frequently and legislation be not struck down without application of mind. You could have variance to my friend's Resolution. For example, as a matter of practice, not as a matter of law, courts very rarely stay legislation. If there is a notification or a delegated legislation, the court may or may not stay more easily, but if there is legislation, interim stay is not normally granted as a practice of the court itself. Why is that? It is because legislation is given a higher status. It is something which goes through the collectivity of this House, of the next House, of the President of India, and that is rightly entitled to more weight. Therefore, I think this is a salutary rule; it is something which is desirable in the public interest. It takes account of realities, because adjudication, judgement giving and decision-making are a peculiarly human task. It is something which has to have subjectivity varying from judge to judge and that subjectivity cannot be eliminated -- we are all human beings -- but it could be minimized. You could minimise subjectivity by having larger collectivities and that is the spirit behind the hon. Member's Resolution.

Secondly, Sir -- and a word of caution here, a word of caution in respect of an issue which the hon. Member may not even have anticipated -- although this is desirable in the interest of the nation, there may be issues of constitutional validity of this Resolution itself. That is because, given the powers exercised by our courts, given, what I might call, the current phase of judicial activism sweeping across the length and breadth of the country, not only in one court but, across the board, in different courts, it is entirely likely that a law which says that you shall decide only in benches of five or three may itself be struck down as being supposedly an unconstitutional interference in the working of the courts by the courts themselves. That is an example of judicial activism and unconstitutionality. Of course, whether this would happen or not would depend on if and when a law is passed and if and when it is challenged. But certainly, in principle, the law is desirable and if and when it is passed and if and when any court decides to strike it down by saying that 'we are being forced to decide in collectivities which we don't want to do', then you may even have to consider a constitutional amendment with the same provision.

Sir, behind this lies the larger debate of judicial activism versus judicial restraints. It is not necessarily a debate which is today before the House in its full comprehensive contours, but certainly it is the bedrock and the sentiment which lies behind some of the issues raised in today's Resolution.

Sir, judicial activism and judicial restraint both, again, as I said a few days earlier here, in my humble opinion, represent extremes and the golden virtue lies really in between these extremes. As Aristotle had said, 'extremes are always vices, the virtue lies in between.' Take, for example, Public Interest Litigation. Public Interest Litigation is an innovation of the judiciary in India of which we are rightly and justly proud. It was invented in the early 1980s and the late 1970s to deal with certain issues of physical human rights violations. But Sir, PIL is an unruly horse. It depends very much on the dexterity of the rider as to how well the unruly horse would perform. The rider has to be dexterous. Thus, the concept of PIL may be good, but if the riders are spread over 5000 different judges with 5000 different approaches all over the country, naturally sometimes the horse could be allowed to become far two unruly. It is, therefore, necessary to realise the subjectivity in judicial decision-making and adjudication. It is, therefore, important to realise that while on the one hand legal or judicial concepts may be good, they have to be exercised within the rubric of self-denial and of self-restraint. As somebody has said, the greater the power, the more important it is to use restraint in its exercise. Overuse, frequent overuse of a portent power, dilutes it and makes it less efficacious. That is what all organs have to realise, including the judiciary. It is the Constitution that is supreme. The Constitution draws the lakshman rekha between the three organs, the Executive, the Judiciary and the Legislature, and indeed, between the others, the organs of estate, namely the Press, and its other organs. This lakshman rekha cannot be transgressed merely because what the Constitution says and what it means is given to one of the three organs. What the Constitution says and means, no doubt, is decided by one organ, but in the guise of deciding it you cannot expand your own lakshman rekha and redraw it. (Contd. by 1y/hk)

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