a day ago
Constitution supreme and highest legal doctrine
In a significant move that underscored the spirit of 'Constitutional Dialogue and Institutional Harmony' President Droupadi Murmu, about a month ago, on May 13 sought 'Supreme Court Opinion' on the 'judicially-imposed timelines' for giving assent to state bills. In seeking the opinion of the Supreme Court, Rashtrapathi invoked Article 143 of the Constitution, whether timelines can be judicially imposed on President and Governors for granting or withholding assent to state legislature Bills, in the absence of such provision in constitution.
This reference reflected a 'Commitment to Democratic Clarity and Cooperative Federalism' and as a 'Constructive Step Toward Clarifying the Contours of Constitutional Roles.' It signaled the Head of State's Role in upholding the 'Sanctity of Constitutional Procedures' in harmony with the oath taken by her to 'Preserve, Protect and Defend the Constitution and the Law' while swearing in.
President's Reference by posing 14 questions included broader perspective about 'Judicial Authority under Article 142' and the 'Justiciability of Executive Actions' concerning pending legislation that has not yet become law. This reference has wide ranging 'Constitutional Significance' in view of the fact that the 'Relevant Constitutional Provision' has now opened the door for judicial clarification on the boundaries of Presidential and Gubernatorial discretion.
President's Reference was just a day before Justice Bhushan Ramkrishna Gavai's sworn in as the 52nd Chief Justice of India (CJI). The beauty of Indian democracy is, President administered CJI's oath of 'Solemn affirmation of allegiance to the Constitution, upholding the sovereignty and integrity of India, and to uphold the Constitution and laws of India.'
In fact, Rashtrapathi's oath of 'Affirmation to faithfully execute the office of President or discharge the functions of the President of India, and to the best of her ability to Preserve, Protect and Defend the Constitution and the Law' while sworn in was administered by CJI. Prime Minister's oath administered by Rashtrapathi, also included 'Solemn affirmation to bear true faith and allegiance to the Constitution of India as by law established, and to do right to all manner of people in accordance with the Constitution and Law.'
Hence, Constitution of India, is the Supreme Law and the Highest Legal Doctrine, that outlines country's fundamental political code, structure, procedures, powers, and duties of constitutional bodies. It is binding on the 'Legislative, Executive, and Judicial' branches. The Executive Power despite vested in the President, is exercised on the advice of the Prime Minister and his team. PM is the 'Real Executive Head.'
President, though, constitutionally is the Head of the Parliament, or the Legislature, in reality, the PM and Council of Ministers hold the true Legislative Power. As the central legislative body, the Parliament makes laws, represents the interests and aspirations of citizens. It can amend the Constitution.
An independent judiciary, headed by the supreme judicial authority, the Supreme Court of India, interprets and upholds the Constitution by way of 'Judicial Review' as a check on the Legislature. Constitution also confers the power of 'Judicial Review' on High Courts. The court has the authority to interpret legislation passed by the Legislature as well as the Constitution. This is the beauty of Indian Parliamentary Democracy.
Over a time, 'Judicial Activism and Overreach' and excessive interference in the Legislative and Executive Spheres, has been felt by critiques. Judiciary overstepping its bounds, potentially infringing on the powers of the Legislature or Executive, or by interpreting the Constitutional Provisions, contradicting the spirit of the Constitution, also felt frequently. This is debatable!!
When the court's interpretation of a law goes beyond the intended scope or purpose, such as issuing directives to the executive, rather than simply reviewing their actions, it may amount to contradicting the spirit of the Constitution. The use of Article 142 by the Supreme Court to direct a three-month timeframe for the President to clear bills, bypassing the 'President's Constitutional Authority' ostensibly under the guise of 'Judicial Review' raised concerns about potential overreach of judicial power and as infringing on the separation of powers. This again is debatable.
A day before his oath taking, CJI Gavai in an informal interaction with journalists at the Supreme Court Press Lounge said the 'Role of a Chief Justice was not one of Power but of Profound Duty.' Four days earlier, in similar informal chat with New Delhi Journalists, he put to rest the debate on whether 'Parliament or Judiciary is Superior' by asserting that the 'Constitution is Supreme.' He differed with the criticism that Supreme Court was using Article 142 as a 'Missile.'
The question now raised by constitutional analysts is; can 'Judicial Review' be extended to override or prescribe limits to the President, an Authority endowed with constitutional autonomy? President is the formal head of the 'Executive, Legislature, and Judiciary' and holds the power to make every constitutional appointment, which underscore the authoritative and representative stature of the President. 'Judicial Review' despite being the cornerstone of Indian Constitution, the 'Principle of Presidential Independence' is equally important. This too debatable.
Let us analyse the whole gamut from a different angle. Indian Judiciary follows a 'Well-Defined Tiered Structure' from a trial court or single bench, to the Constitution Full Bench of the Supreme Court. Parliament despite tasked with crafting the very laws that the judiciary interprets, follows a relatively flat, one-stage structure, where legislation is passed in a singular process, often marked by hurried debates, political compulsions, and insufficient scrutiny, leading to increasing instances of judicial scrutiny, stays, and even annulments.
This philosophical imbalance not only erodes the primacy of Parliament but also triggers debates on 'Judicial Overreach.' An alternate could be reinforcing 'Parliament's own Internal Mechanisms' through a multi-tiered legislative review process. A 'Three-Tier Internal Legislative System' operating within and across both Houses of Parliament, with defined roles, appellate stages, and a mechanism for institutional finality, unless constitutionally revisited, may be given a thought.
In an evolution of 'Mature Parliamentary Democracy like India' it calls for a constructive proposal, for a 'Structured, Appellate-Style, Multi-Tiered Parliament System' analogous to how the Judiciary has 'Single, Division, and Full benches' with finality at each stage unless appealed upward, but purely in a legislative context. This enhances 'Legislative Maturity, Efficiency, and Accountability' while potentially offsetting the need for 'Frequent Judicial Intervention' in Legislative Matters.
An in-depth 'Thematic Review' by a Cell comprising 'Members from Standing Committees, Policy Experts, and Research Staff' could be the function of First Tier. 'Appellate Function' in the Second Tier is by a 'Joint Legislative Review Panel (JLRP), comprising 'Floor Leaders, Constitutional Experts, Former Speakers, Former Vice Presidents' etc. to where the Bill automatically proceeds. The Third and Final Tier, the 'Constitutional Review Chamber (CRC)' is meant primarily to review bills. CRC provides the 'Final Legislative Seal of Credibility and Consensus.' This Structure honors Constitution and its Enduring Principles as Supreme.
Rashtrapathi's reference eventually leads to 'Relook at Separation of Powers, Federal Structure, and Checks and Balances' including the legislative process. The Court's opinion as and when given, may have profound implications and valid concerns about preserving the discretion embedded in the Constitution and avoiding 'Judicial Micromanagement of Executive Timelines' as well as reinforcing the Supremacy of the Constitution. Notwithstanding this, strangely, when timelines are made mandatory for President, nearly a month's silence from the Apex Court feels like a graceful exception, an open-ended adjournment from its own rulebook!
Speaking at a felicitation programme organised by 'Bar Council of Maharashtra and Goa' CJI observed that, 'Constitution is Supreme not the Judiciary or Executive,' and the 'Three Equal Pillars-Judiciary, Executive and Legislature' must work together. And hence, it is the 'Constitution, Not Any Single Organ' that provides the 'Framework for India's Democratic Functioning.' Legislature within its limits, Executive with responsibility, and Judicial Review with restraint, ensuring balance rather than dominance shall be the desired outcome.
