When the courts legislate & execute (Opinion)
- The ‘basic structure’ doctrine as ruled in 1973 by an SC Bench states that certain basic structure of the Indian Constitution, especially those that guarantee the fundamental rights, cannot be altered or destroyed through amendments by Parliament.
- When Justice Jagmohan Lal Sinha invalidated Mrs. Gandhi’s election win and barred her from holding elected office for 6 years on grounds of electoral malpractices, Mrs. Gandhi went on to impose Emergency from 1975 to 1977. During this time, she introduced Article 329A to void the judgement to cement her position. Later, this was successfully challenged and struck down. The Judiciary effectively curtailed autocratic politics.
- Montesquie was a proponent of theory of separation of powers, which assumed that power corrupts people and hence should not be concentrated towards a particular entity. Dr. Ambedkar shared the same views and supported theory of separation of powers.
- The German Constitution, drafted in1948-49 following the Nazi period came under great scrutiny to avoid the mistakes of the past that allowed Adolf Hitler to seize power and impose an authoritarian democracy. The principal of the basic structure of the Constitution was sanctified in Article 79 (3) of the Basic Law for the Federal Republic of Germany.
- Although The Supreme Court possesses powers to commute clemency in regular appeals, in a scene expressing utter disregard for previous sentences, a 3-judge bench in January 2014 commuted clemency to 15 persons in Chauhan & Anr. vs Union Of India & Ors. on the grounds of delay alone, under the matter of Judicial review of Pardon power.
- Protection of our fundamental rights remains paramount and the Judiciary can and must curb acts of excess, and ensure checks and balances. However, the protection of our fundamental rights itself never empowered the Supreme Court to either legislate or to execute. The decision in the Shatrughan Chauhan case has been widely and wrongly heralded as a decision in support of human rights, while squarely forgetting the Judiciary’s infringement of the cardinal principles of separation of powers. The Judiciary cannot revolt against the Constitution, but only on its behalf.
- Despite being heralded as in favour of human rights, this decision directly infringes the cardinal principles of separation of powers. The Supreme Court is expected to curb acts of excess, ensure checks and balances and is not empowered to either legislate or execute even in the purview of protection of Fundamental rights.This erroneous judgement brought forward the case of Murugan, Perarivalan and Santhan, convicted in the Rajiv Gandhi assassination case, and commutations were ordered under the same grounds. The judgement wrongly declared the power of the state government to exercise remission of “life sentence” to “no sentence,” and enabled the release of the convicts. On being challenged on this decision, P. Sathasivam, Chief Justice of India stated: “We are responsible for this problem. We will solve it.”
- In Krishta Goud & Bhoomaiah vs State of Andhra , the Supreme Court Bench presided over by Justice V.R. Krishna Iyer clearly stated that judges cannot rewrite the law irrespective of their views of urgent reform.
- Taking undue political advantage, in its attempt to appeal to mass sentiments and sympathies prior to elections, the Tamil Nadu government exercised the remission power and put the onus on Centre to act within 72 hours to create a short term victory for themselves while enforcing a culture of appeasement above governance and the rule of law.
- Separation of Powers
- Death Penalty
- Shatrughan Chauhan case
- Human Rights