Do the Events show that the Executive & Legislature are above the Judiciary?
AN OPEN LETTER TO HON’BLE THE CHIEF JUSTICE OF INDIA AND OFFICIATING CHIEF JUSTICE OF THE HIGH COURT OF DELHI
My Lords,
1. The following important & substantial questions of law of Constitutional and general public importance arise for the determination of the Hon’ble Writ Courts:-
,BR>
a) While the two Hon’ble Benches, Presided over by none other than the respective Hon’ble Chief Justices of the Apex Court and the High Court of Delhi (the two Writ Courts exercising their extraordinary writ jurisdiction), are in seisin of the matter—moreso, when certain operations therein are going on under Their Lordships’ directions & orders, is it Constitutionally proper to attempt to nullify the said orders & directions by passing the Delhi Laws (Special Provision) Bill of 2006, without observing even the courtesy of obtaining the formal permission of the said Courts?
Will the said Bill enable the Central or State Government to suo motu de-seal the premises which have already been sealed under the orders & directions of the said Hon’ble Courts?
c) Will this Bill nullify the Contempt Notices which have already been issued by the Hon’ble Supreme Court to those who had tried to de-seal the already sealed premises, included the Notice issued to Mr. HS Balli?
d) Will this Bill allow those—who (vide their Affidavits given to the Hon’ble Supreme Court) had solemnly undertaken to close down their commercial activities within one month, to continue the said activities beyond the said one month? Will this not amount to over-reaching the Hon'ble Court and also the Contempt of Court?
e) Should the said Bill not be construed by the Hon’ble Courts as a fraud by the Executive-cum-Legislature upon the Constitution and also an act to subvert/impede/soil the pure stream of the Administration of Justice? Has the individual--who piloted the said Bill, committed criminal Contempt of the Court?"
2) Based upon the advance-copies of one of my Articles (published in the Patriot) the Supreme Court of India accepted the principle proposed therein to the effect that ‘Statutory presumption is always rebuttable—be it contained in procedural law (Evidence Act) or substantive law (TADA)’. This made the grant of bail to Mr. Sanjay Dutt (the Bollywood actor) possible.
3) Similarly, the concept proposed in another Article of mine (published in the same newspaper) to the effect that the cabinet Ministers are also ‘public servants’, made it possible to bring them into the ambit of the Prevention of Corruption Act.
However, in the interests of justice, it is necessary that these Ministers be tried by separate courts (set up under a special statute)--which are not supervised by those against whom the Parliament is Constitutionally empowered to initiate impeachment-proceedings. Moreso, the Ministers are a separate class (category) of public servants—to whom Article 311 of the Constitution of India does not apply; hence, the procedure/criteria for dealing with malfeasance and breaches of law committed by such Ministers, ought to be different.
4) Another Doctrine being proposed in this Article is:-
‘Equitable balance between conflicting Rights’.
Since time immemorial the need to regulate social life (in its various facets) has been recognised—be it through the tribal Chieftains, the Monarchy (Kings & Emperors), the Politburo of the Communes of Peasants & Workers, or the Democratically elected People’s Representative(s).
However, over the times, the guiding philosophy/policy in governance has undergone a sea-change as under:-
a) Laissez faire: Let the social dynamics determine the inter se relations between the people—the Monarch intervenes only when serious aberrations are pointed out to him.
Benevolent King: Maximum good of the maximum number of people.
c) Communes: The Joint-Family philosophy of ‘from each according to his capacity, and to each according to his needs’.
d) Democracy: Equitable balance of conflicting Rights. The principle/concept of “Your Right ends where the injury to my nose becomes imminently likely”. To cite a few examples:
i) the principle of tortious liability under the Public Law;
ii) the concept of reasonable restrictions on Personal or Group-Rights;
iii) the equitable requirement of a level playing ground—free legal aid, in deserving cases, to the poor;
iv) the regime of reservations/quotas for the ‘weaker sections’ of the population.
Hence, the solution to the current burning problems—like the reservations in the educational Institutes and the demolitions in Delhi, lies in judiciously striking an equitable balance between conflicting Rights.
5) The need for Judicial Activism arises when:-
a) The legislative process is not pro-active and is too slow to respond to a social crises—a crises which has grave ramifications either for the pure stream of the administration of Justice or for the functioning of the Constitutional machinery itself;
The Executive organ of the State fails to comply with the statutory mandate(s), and the facts & circumstances of the matter are such that a Public Interest Litigation would ordinary lie—though no public-spirited individual/group has come forward to take up the particular cause;
c) In a democratic set up, the Legislature—acting on the principle of ‘majority of votes’, passes a piece of legislation which is inequitous & harsh to the interests of the minority or the weaker of the two sections/lobbies whose respective Rights are in direct conflict.
Clearly, in the present scenario the need for judicial intervention is eminently called for.
An equitable solution to the Reservations issue will soon be posted on this website.
Here is a copy of the contents of my letter dated May 14, 2006 addressed to Hon'ble the Chief Justice of India--much before H.E. the President of the Republic of India gave his assent to the Delhi Laws (Special )Provisions) Bill, 2006:-
"