India Remains A Democracy Because Legislature & Executive Are Kept In Check By Judiciary : Justice L Nageswara Rao

The 'war cry' of politicians about Parliamentary supremacy is wrong and India remains a democracy because the Executive and Legislative powers are kept in the check, said former Supreme Court judge Justice L Nageswara Rao. He reminded that it is the Judiciary which is exercising that check on the Government and the Parliament.He was delivering his address at the All India Lawyers' Union National Seminar held at Hyderabad recently.“The Chief Justice of India has recently said that Kesavananda Bharati judgment(which laid down the Basic Structure Doctrine) is the north star of Indian Constitution. I agree with him. We are what we are today, still enjoying this democracy only because the Parliament is in check. Only because the executive power is in check. And who is doing it? It is the Court. I am not saying that Court is supreme. There is no organ that is supreme in this country. It is the Constitution that is supreme. So, this war cry of politicians saying that parliamentary supremacy, according to me, definitely is not correct. ”The seminar was on the “Constitution & We the People” and Justice Rao addressed the audience on ‘Revisiting the Basic Structure’.Justice Rao commenced his address by telling the story about the basic structure. He started with how prior to India becoming independent on August 15, 1947, the constituent assembly in 1946 December started functioning . The Constituent Assembly appointed a drafting committee under the leadership of Dr BR Ambedkar, and B.N. Rau was given the task of drafting the Constitution and placing it before the drafting committee. Rau visited various countries in the world and then borrowed provisions from several countries. After about two years and eleven months, the Constituent Assembly approved the Constitution on 26 November 1949, which is now celebrated as Constitution Day. He thereafter stated that though this is not connected to the basic structure, the speech made by Dr. Ambedkar on 26 November 1949 is memorable. In that, inter-alia, Dr. Ambedkar had said:“As long as this country is divided on the basis of caste, religion, and region, there is no independence.”Taking a cue from this, Justice L. Nageswara Rao stated, “All of us who are educated should at least project ourselves to be civilised. It is high time that we rise above all these considerations of caste, religion, and even the disparity in society has to be forgotten. All of us are equal.”Before proceeding with the explanation of basic structure and landmark judgment in the case of Kesavananda Bharati, Justice Rao drew the background. He spoke about how part three of the Indian Constitution that guarantees to all the citizens of this country, certain fundamental rights that are basic rights for the existence of a human being. This includes Article 32 that gives right to the citizen of India to approach the Supreme Court whenever there is a violation of a fundamental right. Justice Rao reiterated that how Dr. Ambedkar described the same Article as being a heart and soul of the Constitution because it gives the power of judicial review, and it places checks and balances on executive power. “These fundamental rights are very basic to a democracy”, Justice Rao stated. Moving forward, he spoke about part four of the Constitution which contains the Directive Principles of State Policy (DPSP). This part casts a duty on the state to ensure the welfare of the people. “Both part four and the fundamental rights are like two wheels in a charioteer.” Talking about the tussle between the Parliament and the Court, he said: “The Parliament says that I am making laws in part four to benefit the people, why should the Court interfere on the ground that there is violation of fundamental rights. On the other hand, the theory in the protection of fundamental rights is that there is basic right that is given to the society as such, and individuals and you could not be permitted to trample those rights.”Thereafter, he talked about Article 368 of the Indian Constitution (Power of Parliament to amend the Constitution and Procedure therefor). Elaborating on the need of this Article he cited Thomas Jefferson’s Quote (3rd U.S. President): “each new generation has a right to choose for itself the form of government it believes most promotive of its own happiness.” Justice Rao stated that with changing times, changing policies and changing standards of life there might be a need of parliament to exercise this power of amendment. Basic Structure And Kesavananda Bharati’s CaseAt this stage, it is important to note that the Kesavananda Bharati judgment (Kesavananda Bharati v State of Kerela (1973) 4 SCC 225) which was delivered on 24 April 1973, is a landmark judgment of the Supreme Court of India. The case was filed by Sri Kesavananda Bharati, the head of a Hindu religious mutt in Kerala, challenging the constitutional validity of the 24th, 25th and 29th Amendments to the Indian Constitution, which sought to curtail the powers of...

India Remains A Democracy Because Legislature & Executive Are Kept In Check By Judiciary : Justice L Nageswara Rao

Gyanvi Khanna

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