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HK/1y/3.00

DR. ABHISHEK MANU SINGHVI (CONTD.): That is the crux of decision making; that is where the errors sometimes occur; that is where the errors can be reined in by creating a larger collectivity and that is where the resolution moved by my friend has some relevance. Sir, where on the one hand judicial activism or judicial power can do good, it can easily become farcical sometimes. We are not here in this House to discuss individual cases. But, for example, would a public interest litigation power be usefully used to deal with monkeys in Delhi, to direct that monkeys in Delhi be re-exported out of the city to other States? Is that a fair, proper and correct use of this power? An interesting thing can happen that the receiving State can object that 'we do not want langurs exported from Delhi in our own State. Under what power can you direct that a langur be exported from here into our own State since they are a threat to humanity in our own State?' Now this is an issue where you have to realise where the Laxman Rekha will be drawn. Therefore, sometimes, the collectivity underlines the larger bench or the 5-judges, or the 7-judges or the 3-judges -- the numbers are not relevant -- can make a difference. Sir, ultimately, one must realise that by its very nature the judicial function is different from the executive function and the legislative function. The judicial function has several positives; it has several plus points. But it has some in-built negatives. I am not talking of judge-A or judge-B, but it has in-built negatives in its very nature. The in-built negatives are, a judge-made law is individual law made in individual cases. The law expands by deciding individual cases. An individual case may have individual features, but in deciding it you lay down general principles which apply well beyond the narrow individual facts of that case. This is the essence of judgement giving; this is the essence of judicial law creation. Now, therefore, in the course of deciding the facts of the case, you are laying down law for other cases. It is all the more important to exercise a certain self-imposed limitation, a certain self-imposed restraint. It is all the more important to ensure that the subjective element and the objective element are clinically separated. The subjective element is necessary. It is necessary because it is the fact of the particular case which enables a judge to do justice in a case. But along with a subjective element, there has to be an objective element that if I lay down, apart from the facts of the case, a general principle, you have to anticipate that there are going to be subsequent cases where that same principle may be well misused, may be well misapplied and that is where the collective decision-making is important because when one judge may decide to expand the frontiers of the Laxman Rekha, another judge may rightly decide to pull him back. That is why I think that this must not been seen as an onslaught or an attack on the judicial functioning. It is only meant as a facilitating technique to remind all organs that it is not the individual discretion or the individual opinion, which matters for the nation, it is the collective opinion of the court which matters. Now, I must tell you that there are several countries, for example, America, where the apex court -- in our country, as I said, the apex court is unique because it has to sit in benches of two and in matters of constitutional validity, they sit, by convention, in benches of five -- by the Constitution of America, can only sit together; no benches can sit. Of course, their court is half the size of our Court. They have eleven. But

all eleven have to sit together, what they call Obang, and not separately. By the same principle, the same reasoning, they can also sit separately. By sitting separately, they can dispose of more cases. But, since the US Supreme Court deals mostly, almost entirely, with matters of public importance of constitutional law, they have an invariable rule that the entire court sits together. Take, for example, the House of Lords, which is the apex court of England. The House of Lords like our Supreme Court, decides matters not merely constitutional but also ordinary matters like private law disputes. (Contd. by 1z/KSK)

KSK/HMS/3.05/1Z

DR. ABHISHEK MANU SINGHVI (CONTD): The House of Lords does not ever sit in a combination of less than five. Sir, I am not suggesting that for every matter in India, it should be five. There are reasons for that; there are logistic reasons for that. We do not have enough Judges in the Apex Court. If the whole Court or five people were to sit on every matter, our disposal rate would come even further crashing down and the huge arrears would increase. So, that is not the point. The point is that for important matters or for matters which involve a challenge, or a stay, or avoiding, or an invalidation of legislation, there is no reason why the Court should not itself sit in Benches beyond a certain minimum strength. And, I would, in fact, Sir, with your kind permission, opine that, if and when this august House so opines, this is possible by a simple change in the rules of Supreme Court. As you know, the Supreme Court has a Supreme Court Rule Book. You don't need legislation for it. You don't need an Act of Parliament for it. You don't need a Constitutional amendment. The Supreme Court rules can be simply changed. It says today that all Benches have to sit in a minimum strength of two and it also says that all Benches have to sit in a minimum strength of five for Constitutional matters. It has to add only one clause. The clause has to say that whenever an invalidation of a legislation is imminent, or likely, or asked for, then the minimum Bench should be 'X'. That 'X' can be debated, whether it should be five. Perhaps, it is a good figure to have five. But, the point is that this can, and I submit it should be done. I congratulate the Member for something which is deeper than it looks, for something which is in the national interest and for something which is a little noticed fact but which deserves to be highlighted in this august House. (Ends)

֮֕ן ֤ (ײָ) : ֳ֬ , ֮֮ߵ ֤õ ִָ֮ ֵ ׾ָ֓ ׻֋ ֮ ֮־֤ , - ֟ ֮ ֮֟ , ֕ ֵֵֻ ֟ ֵ֤ פ , ר ײ֮ ӓ-ֻ֛ ׾ָ֓ ֮ ֮ פ , ֟ ֮ ֵָ ִ ֵ , ו - august House ׻ under ִ 0 ϳ ָ ß 0 ׳ ֮ ֑־ ׾ֵ ָ օ ָ ֟ ֟ judicial activism ָ judicial activism ֲ judicial activism ֲ ֵ ֲֻ֟ , օ ֲ ֮ օ ֲ ֲֻ֟ ָ ֮ ֵָ , ָ soveregnity , ָ ִ ׻֋ ֮ ֮֮ ֟ ߴ և 5 ֕ 7 ֕ ֮֮ ֟ ߴ֮, ָ ָָ ㌟ֳ - ֮ ֮֋ ֟ ֮ ֮ ֟ ֮ ֟ פ ֵ , פ ֵ ֻ֟ ֮ ׻ ֮ ׬ָ כֵָ ָ ָָ "ֻ ֕" ֵօ "ֻ ֕" , ֵօ ֟ ֤֕ ֮-ן׮׬ , ֟ ׻֋ ֮ ֵָ ־ָ , ֮ ־ָ

(2 /ߋ־ ָ ֿ:)

PSV-GSP/2A/3.10

֮֕ן ֤ (֟) : ָ ֟ ֮ ־ָ ӑ֮ ָ ֟ ָ ֤ ׸ָ , ֻ֟ օ

ֳ֬ , ֟ ֲ ֟ ֟ ֟ ִ֮ , כ׿ֵֻ ׌׾֕ ִ ֳ֬ , ׻֋ ֯ ִ֬   פ ػ , ׻֋ ֮ ֮ ֮ օ ֮ ֻ ֵ, ׻ ָ ™ן ß֟ ֵ פ ִ֮ ߴ ֮ ֵ , ֮, ֮ , օ ֤ ֲָ ֵ ֮ ױ ػ- פօ ֲ ָ פ, ָ פ פ ו֮֙ , ִ פ Ӥ , ָ כߕ̮ ֵօ ֵ ִ ױ׾֙ , , ? , ? ֮ ֮ ֵ֮, ™ן ױ ָ ָ օ ֲ ױ , ֯ ׸ ֮ ָ ֟ ױ׾֙ ׸, ֲֻ֟ ? ֳ֬ , ֲֻ֟ ־֕ , ߴ , ֮ ִ օ ֟ ߴ ֟ ֮ ִ օ ֲ ֮֯ ֲָ ׮ֻ פ ֟ ֮, ֲ כև ֋ ׻֋ ֵ ß־ ֵ , ִ֣Ԯ ֮ ֺ ָ ֮ , ָ ֮ ֵԤ ߅ 껵֮ ִ֣Ԯ ֮־֤ (ִ֯)

׾ֵ֕ ָ (ָ֟) : ֮֮ߵ ֳ֬ , ֵ ӿ֮ , ָ ֣ ״֡ ֟ , ָ ׾ָ ׾ָ ׻֋ ָ ֛ ס ָ ֮ ӡ þָ , ׾֮֬ ו ָ ӡ פֵ , ָ ִ ָ 110 ֲ֤ ϟ ׌ ֮ ָ , ָ ־֮ ϟ ׌ ֮ ӡ ϳ־ , ׻֋ ӿ֮ ׾ָ ӡ 4 ׯֻ - ׻ֵԴ, ָ ־֮Դ, ָ וֿ֮ , ָ ָ ӡ י ָ ָ ֋ ֋, ӡ ָ ֛ ָ օ ֮ ָ ֲ ׻ֵ During the emergency, ָ׿֯ և , ֌ ֟ ֻ ֻ֟ ׻֟ , ֻ ֟ ֮ ֜ , ׾ , ָ ָ׿֯ , כ ֮ ™ ևԅ ֤ וֿ֮ ֻ פ וֿ֮ ֟ פ օ כ׿ֵָ Ù פ , ײֵ ֯ ״֙ פ օ ӡ ֛ ֮ օ ֤ ֙ þָ ֻ֟ ָ ֕ ӿ֮ ֟ פ ߴ פ ٻִֵ, ߴ פ כ׿ֵָ, ߴ פ וֿ֮, ߴ פ , ֛և ׾֮֬ ֲ ߴ և (2/000 ָ ֿ:)

AKA-SK/2B-1/3:15

׾ֵ֕ ָ (֟) : ָ ٻִֵ ֻ֟ ִ , ֤ ֟ ֻ֟ ִ ָ ָ כָ ָ ֻ֟ ӿ֮ ִ ֤ ֋? ־ԕ׮ ד ָ֬ ָ ָ ֙֙֋ ֟֋ ٻִֵ ֻ֟ , ֮ ׾֮֬ ֵ֤-֮ ӟԟ ߴ ֟ ִ֮ ֛߅ ָ ֲ כ ֻ ׻ ׻? ֕ ֻ, כ, ָ֡, ׻دؙ, ָ̯ ָ֬ ָ ӡ ׾֟ ֟ , , ֟ ֻ֟ ָ ִ ֣ ֮ ™ן ָ ׾֮֬ ־쓓 , ׾֮֬ ־쓓 ֢ և ̻ ִֻ , ֯ ֌ ֟ ָ֕ ֻ , ֵ ֲ ׬ָ , ֵ ״ֻ֮ ֲ ֵ֟? ־֤ , ֮ ٻִֵ ָ ן֯ ָ ָ֕ ׬ָ ֵ ״ֻ, ؓ֟ ִ ֻ֮ ֵ֟ ߻ ״ֻ , ׻֋ ֮ ֤ ӡ ׬ָ ״ֻ, ֺ ָ ׾֬ ָ ٻִֵ 껵֮ ֟ þָ ׸֌ , ָ ֮ , ׾֮֬ ָ֬ ָ ֻ֮ ߿֮ ֟ ֯ כ ֕ כָ ֟ , ֯ ߿֮ ֟֋ ߿֮ ֱ , ֮ ו̙֮ ן ֟ ӡ ֳ ָ ֮ ־֕ ֮ ״ֻ֮ ֮֟ ӿ֮ ָ ™ , ߴ פ ٻִֵ ֟ ֻ , , ָ ׾ָ֓ ׻֋ ӿ֮ ׾ָ (ִ֯)

SHRI PRAVEEN RASHTRAPAL (GUJARAT): Thank you, Mr. Vice-Chairman, Sir. I am in favour of giving full power to the Parliament only in view of the various provisions in the Indian Constitution. You will kindly appreciate that Fathers of the Constitution, that is, the Constituent Assembly of India, in fact, started the work in the month of December, 1946 for framing a Constitution for a free, democratic country. And, the said work was completed after great labour on 26th January, 1950, on the day which was declared as the Republic Day for this country. The Constitution is not made by A or B, not this party or that party. As very rightly pointed out yesterday by one of my colleagues, in the very Preamble, it is a document framed by the people of this country. So, the entire country has imposed faith and confidence in the Constitution of this country. Hence, it is supreme. Now, the same Constitution has divided the governance of this country into three major compartments, one is Legislature, second is Judiciary and the third is Executive. All the three were given sufficient powers as far as governance in a democratic country is concerned. In fact, right now, a debate is going on in this country as to who is supreme. I will say that the Constitution of the country is supreme and all others are subordinates. The Parliament of the country, the Judiciary of the country and the Executive of the country are the creations of the Constitution. (Contd. by ysr-2c)

-SK/YSR/3.20/2C

SHRI PRAVEEN RASHTRAPAL (CONTD.): That which is created by the Constitution cannot be above the Constitution. This very Parliament also came into being only because of the provision given in the Constitution. But, at the same time, courts, particularly the Supreme Court, are given power to interpret the law; that much only.

The present Chief Justice of India himself, in one of his lectures at Ahmedabad, admitted, "As far as interpretation of law is concerned, we are supreme." At the same time, he admitted, "Some time we also make mistakes; but once we decide, we are final." That is the opinion given by the learned Chief Justice of this country in one of his lectures at Ahmedabad in this very month.

With due respect to both Parliament and Judiciary, we have power to make laws. As far as the State Governments are concerned, the State Assemblies have the power to make laws. The Central Government has got direct jurisdiction in many respects. The Central Government has concurrent jurisdiction in many respects. The State Governments have powers in the subjects which are in the State List. But all said and done, the Supreme Court has the power to interpret the law. The Mover of the Resolution has very correctly requested that no law made by Parliament, no law made by the State Legislature, be declared null and void, because that will be challenging the wisdom of the people. After all, who are we here? I am nobody as an individual when I am no more a Member of Parliament. I am like any ordinary citizen. But once I am sent to this House, the Council of States, it means the people of my State, at least, have faith in me. So, Mr. X will go to the Upper House, the Council of States, and represent the State. Similarly, a Member wins the election from a particular constituency and comes to the Lok Sabha. We have got 543 constituencies. Now, the entire country is divided into 543 constituencies. They have faith in their representatives. And Mr. X says that we are also making blunders when we decide something after due deliberation. Sir, we have improved a lot. The present procedure of Standing Committees on various Departments in our Parliament is one of the best mechanisms. We also appreciate that sometimes we are not able to discuss a subject thoroughly in this House and, as a result, we again represent ourselves in the form of the Standing Committee. A Bill is sent to a Standing Committee for a thorough discussion, and it gives opportunity to the public also. After that, a matter is finally decided. With due respect to the limited powers given to the courts in this country, I am of the considered opinion that any law which is made, any law which is passed in Parliament, any amendment which is made by Parliament, cannot and should not be declared as null and void by any other system. Thank you. (Ends)

SHRI TAPAN KUMAR SEN (WEST BENGAL): Sir, I rise to support the spirit behind the resolution, not verbatim. Through this resolution, I am grateful to my colleague, Shri Naik, that he brought forth a very critical problem before the entire democracy in our country, where a law is being made by the people's representatives, and it is being nullified by an institution appointed under the Constitution. The democratic structure is defined by the Constitution. They make law, and that is being made null and void by another institution defined by the same Constitution. But the difference which remains between the two institutions is that one reflects the people's voice, which is supreme in a democracy, and another is just not of that kind. (Contd. by VKK/2D)

-YSR/VKK/2d/3.25

SHRI TAPAN KUMAR SEN (CONTD.): Shri Rashtrapalji has just explained that everybody's job is defined under those institutions. One is to frame the laws to reflect the people's voice and another is to interpret whether the Executive is operating within the framework of that law. So, when the Judiciary is to pronounce its judgement, they are supposed to pronounce their judgement within the framework of that law by not transcending it or they have also to look into the aspect whether any piece of legislation framed by both the Houses of Parliament militates against the basic spirit of the Constitution. I think, these are the basic premises on which these institutions are supposed to act. This is put at stake by different experiences of different judgements and the terminologies, like judicial activism, have come up as a very popular parlance, being debated and discussed when we talk about the democratic polity. So, in this situation, definitely, a time has come when the society must give it a re-look very seriously. It is not because it has put the Legislature or the Executive in difficulty. It is not because of that. Many of these judicial activisms are also aiding, or rather helping, the other wing of the State machinery, that is, the Executive and sometimes, even the Legislature. I can put a different angularity on the whole point. That angle is that on the matter of labour reform, the Legislature has been making exercise since the last ten years to make certain changes to which, it is a reality, the people's voice is not responding. That legislation could not be framed up because that consensus could not be developed. This is a reality in democracy; something takes more time than the other.

Now, some of the judgements which are coming up recently are coming to the aid of the Legislature. I must not say Legislature, but the Government which wants to bring a particular type of legislation in order to induce labour flexibility, some pre-emptive judgement is taking place. Here also, again, Judiciary is transgressing its border, as defined by the Constitution. On the right to strike, a judgement has been passed by the Supreme Court. Subsequently, while interpreting the Contract Labour (Regulation and Abolition) Act, 1970, it has demolished the very basic structure of that Act, saying that contract labour deployed on contract in permanent nature of job cannot have a right to regularisation if they are deployed in the prohibited area of employment. What is this? The basic spirit of that particular Act has been taken away by that judgement. So, these kinds of things are taking place which is really a matter of serious concern for the whole democratic structure itself. My colleague rightly said, nothing is as constant as the Northern Star.

On sealings in Delhi, yes, some judgement had been pronounced nullifying the piece of legislation passed by this House and thereafter, it changed when people's voice became louder enough to make them concerned. I have seen it in my home State. Finding its car blocked in a road jam because of some procession, the Judiciary pronounced a judgement that there should be no procession from eight in the morning till eight in the night. That day, people voiced against that judgement. Next day, there were big processions and lakhs of people were on the road. And on the next day, the Division Bench changed that judgement. When they declared bandh, the whole bandh was declared illegal. A number of bandhs have taken place. Even today, not by my own party, by Opposition parties in Bengal, some bandh is taking place. People are participating in that. Ultimately, the people's voice is heard much louder. I think, the Constitutional agencies which are all composed of human beings like us, should take a message from that.

(Contd. by RSS/2e)

RSS/2e/3.30

SHRI TAPAN KUMAR SEN (CONTD.)... and should remain cautious so that they do not transgress the border defined by the Constitution, and I think, precisely that concern was expressed by Mr. Naik's Resolution. I think, the whole system will feel that concern so that harmony is maintained, equilibrium is maintained in the society. With this, I thank my colleague for bringing in this Resolution. Thank you. (Ends)

DR. E.M. SUDARSANA NATCHIAPPAN (TAMIL NADU): Thank you, Sir. The Resolution brought forward by Shri Naik is a thought-provoking Resolution. We have to find out why this particular Resolution is to be discussed before the Parliament, what is the situation which warranted bringing forward such a Resolution before the Parliament. We know that the Constitution of India is supreme in India. In U.K., the Parliament is supreme. But the Judiciary and the Executive are helping the Parliament. The Judiciary cannot do anything beyond the law made by the Parliament. In the American Constitution, the situation is different. They have to go according to the written Constitution, and the President has got more powers, that is, he is the Executive President, and the Supreme Court is interpreting the Constitution and the laws. But in India, I feel that it is a very, very minutely made Constitution, which needs a discussion like this then and there. After 50 years, a Member of Parliament, who was earlier a Lok Sabha Member, and now, a sitting Member of the Rajya Sabha, has come forward to move this Resolution before this House. What is the reason for that? What made him to come out with this Resolution? I have not followed his speech earlier. But I could find from the reading of this Resolution that there is some hastiness with the Judiciary to sit on judgment in respect of a law which is made by the Legislature, that is, the Parliament or the State Legislature. But, at the same time, we are not saying that whatever law is made by the Parliament or the State Legislature is supreme. In the beginning of my speech, I said that the Constitution is supreme in India. The Legislature is there to give more meaning to the Constitution, to make laws and rules according to the whims and fancies of the majority of people who vote and elect the Parliament. Therefore, the feelings of the people are reflected through laws made by the Parliament. The Executive is there to execute whatever laws or regulations are made by the Parliament. If these two wings of the State are violating the Constitution, if they are violating the laws, if they are violating the rules, then the court comes into the picture. Till then, the court has no jurisdiction at all to go into the activities of the Parliament or the Executive. Only if there is a violation of the Constitution or if there is a violation of law made by the Parliament or the rule made by the Executive or any such thing, the court can intervene, because we are controlled by the rule of law. Therefore, it is very clear and also interesting to make an academic discussion in respect of article 141. I just quote article 141 of the Constitution. It says: "The law declared by the Supreme Court shall be binding on all courts within the territory of India." This is a very interesting article which says, it is not binding upon the Executive or the Parliament, it is binding upon the courts. Why had such a thing happened? The verdict of the Supreme Court is also used as a law. A law is made by the Parliament. It cannot be made by the Supreme Court or the courts. But it can be interpreted by the Supreme Court. But when the legislative work of the Legislature is brought before the Supreme Court..... (contd. by 2f)

-RSS/MKS/SC/3.35/2F

DR. E.M. SUDARSANA NATCHIAPPAN (CONTD.): ...and it goes beyond the jurisdiction or beyond the powers of the Constitution, then, the Supreme Court has got a right to say that you are crossing the boundary of the law which is already made by the Constitution or by our own Parliament. Therefore, the power of the Supreme Court is to give a second label to say that it is the law of the land. But, at the same time, if a dispute arises between the parties or between the individuals or if there is a State vs. individual dispute or an Executive vs. individual dispute, then the matter will go to the Judiciary. And at that time, if a law is made by the Supreme Court, that will be binding on all the courts, from the topmost court to the lowest court. Therefore, Sir, the question is, in which way a law is to be made? What is the necessity for making the law and how to amend it? These are all the works of the Parliament. We know, the Parliament knows the pulse of the people. When the people feel that this is the law to be made for the country, only then we make the law. Suppose we make a law which is not within our power--and it is already declared by the Constitution that this is the limit--and if we go beyond that, then a person can go to the court by using article 32 or article 226 and seek the help of the Judiciary to say that the Constitution is not violated by a particular body of the State. Sir, at that time, the court can declare that the law made by the legislature or a portion of the law or a particular section made by them is wrong; it is ultra vires of the Constitution and it is beyond their jurisdiction.

Sir, at the same time, if we make a big research, we find that despite many of the declarations which were made by the Supreme Court of India or by a high court that the law is wrong, is illegal, is ultra vires, we are striking down, even then the Constitution retains the same law which was already struck down by the Supreme Court. In the same way, there are many laws which were struck down by the Supreme Court but the Executive or the Parliament has not taken the pain to see that it is implemented according to the Constitution. There is a feeling among all the three wings of the State that we need some thinking that even after 50 years of Independence, the Constitution is working very well, but, at the same time, there are small hiccups here and there and that have to be made up. For example, Sir, the highest institution in India, according to the Constitution, is the Parliament, and also the Rajya Sabha. But due to our emotions, we have to react to the media, and we are adjourning the House. We, the law-makers are making a thing, which cannot be done by us. Simply because we are emotional, we want to reflect the people's mood, therefore, we are not doing the work at a particular time. In the same way, we may be coming forward with some legislation. At that time, it is the Judiciary which sits there coolly. They are sitting there. They are to be nominated or selected or appointed by a warrant of the President on the basis of the recommendations made by the Parliament, that is, through the Executive. They have to be appointed to reflect the feelings of the people because the Supreme Court is also sitting only on the feelings of the people. Before 1993, we were doing like that, but, after 1993, the Parliament has now lost its right to appoint a judge. The Parliament, the Government which is the Executive, has lost its right to name that these are the persons who are going to represent the people in the Judiciary. In America, they are having a direct election. The Senate has to approve the names of the Supreme Court judges. They have to approve the names of Chief Justice of the Supreme Court. But we are having a very technically, properly made Constitution where the judges also represent the people through a very minute, very delicate selection process which is made according to the Constitution and which was practised till 1993 successfully. (Contd. by TMV/2G)

-MKS-TMV-ASC/2G/3.40

DR. E. M. SUDARSANA NATCHIAPPAN (CONTD.): But after the court's verdict the Executive is hesitating and the Parliament is also hesitating to touch it. It may bring up some other problems. But, at the same time, this particular Resolution reflects on it. This particular Resolution reflects on the fact that we can't accept a two-Judge Bench sitting there and saying what the Parliament has done or that the law made by the Parliament is unconstitutional.

Sir, a Constitutional amendment is made by the Parliament by two-thirds majority in both the Houses. Then it goes to all the States of India where two-thirds of the Assemblies accept it by two-thirds majority. After that it goes to the President of India for ratification. Then only it becomes an amendment of the Constitution. But simply two Judges or three Judges sitting in the Supreme Court can say that a particular amendment is unconstitutional. This particular Resolution wants to give a red signal. A time has come when the Parliament has no say in the selection of Judges and the Executive has no say in the selection of the Judges. It has been done by the Judges themselves. How many members are there in the collegium? It is a collegium of three Judges of the Supreme Court or three Judges of a High Court. Three Judges of a High Court are selecting the names. They are sending it. It is vetted by the Executive. Then it goes to the Supreme Court. They are selecting the Judges. They decide the numbers. They send it to the Executive. The Executive can change the numbers. But they have to send it to the President of India. But what is the base of this particular person? What is the background of this particular person who is going to sit as a Judge in a Constitutional Bench and who is going to say that a particular law is wrong? Do we have a right to say like that? Yes, we were having it earlier. A majority of the Members of Parliament had met the then Prime Minister of India and the then Cabinet had taken a decision. A decision should be taken properly by the Cabinet through the Departments and then it should be placed before the Judiciary. The Judiciary should go through it and see whether it is valid, and it should recommend it to the President of India.

(MR. DEPUTY CHAIRMAN IN THE CHAIR.)

When that is the position, what has happened? A person, who is not at all known to the Parliament, who is not at all known to the Executive, is being selected as a Judge by three persons!

Sir, we can't comment upon the Judiciary. At the same time, it has come in the media. In today's newspapers you might have read how the appointment of a Chief Justice was commented in the media. A collegium of three members have expanded themselves into four members. Out of the four members, three members dissented on the appointment of a particular person. But finally a decision was taken and it is being implemented. That is the main reason, I feel, why this Resolution wants to say that you are making a separate Judiciary which is not accountable to anybody. It is not at all accountable to the Parliament; it is not at all accountable to the Executive; more so, it is not accountable to the people. The situation is such where a two-Judge Bench or a three-Judge Bench can easily declare any law ultra vires.

Sir, I have already mentioned that many of the Constitutional provisions, which were already declared as ultra vires, have not been removed from the Constitution or the law books. The law books and the Constitution retain those provisions which were already declared as ultra vires by the courts. They still exist. They are alive. It will become a controversy when this position is challenged before the Supreme Court by way of a petition. Then, they will say, "We have already declared it as ultra vires and, therefore, this particular provision can't be binding on us". It is illegal. (Contd. by VK/2H)

VK/2H/3.45

DR. E.M. SUDARSANA NATCHIAPPAN (CONTD): Therefore, duality is being maintained in this nation. It is high time when we have to find out in which way we can work more and see that the Constitution is protected by all the three wings of the Constitution.

Sir, this Resolution also reflects upon another thing. According to article 145 of the Constitution, Parliament has got the right to make laws. Article 145 (1) says, "Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including...." Therefore, the Parliament can make law and that has to be followed by the Supreme Court. In the procedural law, the Supreme Court can make its own procedure, but at the same time, Parliament has also got the right to give the procedure. This Resolution only talks about the procedural law which has to be made under article 145 (1). This Resolution has made people to think a lot about it. We have to wake up to the call of the nation that whether the Parliament is ready to amend the procedures which are followed by the Supreme Court for the selection of judges, for making its own Benches, for making its own procedures. These are the things. Without any bias, without any political mind, we can sit here in this forum and decide that this is what the people want. Post-93, a lot of things have come up in the appointment of judges. Many of the judges have come from their own families, from their own Chamber, who were their juniors, from their own friends. Many of the social justices were not reflected at all in the judicial appointments. Only the people belonging to the elite group, who are, more or less, known as intellectuals, people belonging to a certain section are coming up. They are interpreting the law, which are made for the ordinary people. We, as a nation, have successfully constituted Parliament fourteen times. Governments have come and gone and have made many laws which were reflected upon each and every election. In every election, a politician, a Member of Parliament has to stand before the people and say, "I have done this for the last so many years. This is what I have done for the nation. This is the thing which I have done for the people. Therefore, vote for me and vote for my party." That is the accountability which we are discharging each and every time whenever elections are held. Where is such accountability for the judiciary? If a judge has gone into the Bench at the age of 35 years, he can be there for many years. Then he will be automatically elevated to Chief Justice. Then if he has got some push and pull, he will be elevated to the Supreme Court and he will be there for three to five years. A certain judge has sat for more than this period as Chief Justice of India. They are interpreting laws without knowing the mind of the people. There is a great need to fix accountability on the judiciary. We don't have to think about it on political basis, we have to think about it on the basis of protecting the Constitution. Parliament has got the right to protect the Constitution. The Executive has got the right to protect the Constitution. The President of India has got the right to protect the Constitution. The Judiciary is also having the right to protect the Constitution. It is not the judiciary alone which has to protect the Constitution, it is the work of all the wings of the Constitution to protect it. Our Constitution is the best.

(Contd. by 2J)

RG/3.50/2J

DR. E.M. SUDARSANA NATCHIAPPAN (contd.): It has been properly practised, even though we made several amendments to reflect upon people's minds. For example, our Parliament has made amendments 92-93 times, but amendments are made only on the basis of the feelings of the people, to address the needs of the people, and also to implement the provisions of the Constitution. For example, we amended articles 15 (4) and 16 (4) because we wanted social justice. It is the backward class citizens, not the caste, which ought to be protected. That is the original concept of the Constitution which we are implementing. But we are getting such comments from the judiciary saying that Parliament can do anything and they can make any law! Such are the comments that we are getting from them. But Parliament has got its own rights according to the Constitution. Also, we, as Members of Parliament, have a greater amount of freedom of speech, which is provided for in the Constitution itself because we, as representatives of the people, put forth the feelings of the people before Parliament reflecting the people's minds. Sir, this legislation is not an ordinary legislation; according to me, it is a historical legislation, which has been brought by way of Private Members' Resolution. But I feel that there should be a more detailed discussion on this particular topic. It is time for us to stress upon the fact that while the Executive has got certain accountability and Parliament has got its accountability, the Judiciary also must have accountability. One of the hon. Members commented upon orders made in a particular case where monkeys of a particular area had to be shifted away from that place. I just want to comment on it. Who is responsible for it? Actually the Executive, the local Municipal Corporation, is responsible. Now, if they are not doing the work, the society has got a right, every individual citizen has got a right to approach the court and say, "I want to live peacefully, but the monkeys are disturbing my life. And, the Executive is not doing their work. Therefore, why don't you issue a writ upon them?" Then the Court issues a writ and gives direction to them. I can cite here another sensitive example of the Delhi shopping complex system. There is the Central Vigilance Commission. We have made a law to the effect that if a particular executive member, who is an official, does not discharge a particular duty properly, or, is violating his powers for some other means, then, the CVC can inquire into it, prosecute them, and see to it that the system works properly and the laws are executed accordingly. Sir, in Delhi, for the last 20 years, there have been violations of the laws plenty of times. But the officials of the Corporation are not being made accountable for that. How much of a problem we have faced on that account, and how much money has got wasted on account of various violations. Nothing happens until there is a writ petition in the court by way of a Public Interest Litigation. They say that everything has to be according to the law. Now the law cannot take its own way; they have to interpret what is in the law which is already in existence. Therefore, there is a confusion in the mind of the people as to whether a particular Executive's action is wrong, or, whether the law which is already in existence, is not proper and whether it has to be amended properly. This is the problem we face, and, at that time, the judiciary takes a stand and pushes other cases out. But they take a longer time in disposing of the Public Interest Litigation itself. Sir, this Public Interest Litigation is a novel idea which came up only in the 80s. Before that, there was no provision enabling a person to challenge an Executive Order which reflects upon the entire community. But now anybody can challenge any action taken by the Executive by way of a Public Interest Litigation. The entire executive machinery has come to a standstill now because of a stay order given in respect of a PIL. Why I am giving these examples is that this is high time to sit, decide and remove the hurdles. (Continued by 2K)

2K/3.55/ks-hms

DR. E. M. SUDARSANA NATCHIAPPAN (CONTD.): We have to repair our machinery. The machinery is good but there are some problems here and there. Those problems have to be looked into by the concerned authorities. We, the Members of Parliament, have got the right to find out which part of the machinery has gone wrong. We have to remove that part, just like we do in our modern cars, without any tinkering. Nowadays, they just replace the defective part. Now, whether that type of a law has to be made or whether we have to do some tinkering here and there or whether we can put some screws here and there, or whether some extra lights can be put and so on, has to be decided by the Parliament. That is why this Resolution has got some weight. Hon. Members can come out with their ideas and the Government can also reply on these lines.

While concluding, I would like to submit that our Constitution has been working for the past fifty years. This has been debated at different forums. Sir, it is the best Constitution. But, so far as its working is concerned, it is not proper here and there and it can be rectified. Sir, this Constitution, which is the best, can give us the best administration, the best management, the best Judiciary, the best Executive and also the best Parliament for India. (Ends)

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(2/ߋ־ ָ ֿ:)

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