Chief Justice of India (CJI) Dipak Misra has reiterated the primacy of the need to uphold fundamental rights of citizens. In reply to an argument advanced by Union Law Minister Ravi Shankar Prasad, Misra has dismissed accusations of judicial activism and stated that the judiciary functions under the rule of law, it would uphold the rule of law, and it enjoys “constitutional sovereignty” in discharging its responsibilities vis-a-vis governmental actions and people’s rights.
The Union Law Minister had argued that the Constitution has given the right of governance to the elected representatives, and that the judiciary should avoid straying into matters of policy formulations; something that must be left to the will of the Parliament and the elected government. Else, he said, it would lead to “disruptive situations”. What warranted such a sounding of caution at this juncture is not clear.
The CJI’s remarks came amid statements from various quarters hinting at judicial overreach. In recent times, the Supreme Court has delivered a slew of judgements that have interpreted issues in the light of fundamental rights. A recent historic ruling to come from a constitution bench of the Supreme Court was on privacy. The bench ruled that privacy is a fundamental right, which every citizen should enjoy, albeit with reasonable restrictions. This ruling is seen as a precursor to the judgment on Aadhaar issue.
The Parliament and the government are vested with powers to frame policies. But this right is not seen as absolute. When a critical issue arises, where citizen’s rights are infringed, for example, the intervention of the judiciary is sought in natural course.
Parliament is the framer of policies in the form of bills that turn into laws with Presidential assent. In case the government enjoys brute majority in Parliament, it can be used as a tool to enact laws that go against the general interests of the common man.
In such situations, the role of the judiciary, or the apex court in specific, to set wrongs right is vital.
Notable is a recent instance of governmental interference in the finalisation of dates for the Gujarat Assembly elections. While election dates for Himachal Pradesh were announced, the Election Commission delayed the announcement for the Gujarat polls, presumably at the instance of the Union Government. To a large extent, this resulted in a loss of credibility for the EC. When rules, norms and laws are violated by an elected government, the role of the judiciary becomes very important. A court intervention in Pakistan, in the Panama Papers case led to the exit from power of an elected Prime Minister. It meant that an elected representative of the people, or a collective of Parliament, cannot have a freewheeling authority or right of way when faced with accusations of law violations. It must be borne in mind that Parliament is not above People. Elected representatives are not free from party clutches while functioning within whip guidelines. Therefore, to claim that Parliament is the final authority is also an aberration which, if left to run free, can be extremely harmful for the nation. History tells us that Adolf Hitler too was once elected.
Governments are becoming increasingly intrusive as they bring their citizenry into databases that have the potential to be means for coercion and exploitation. A recent report said Aadhaar for various government benefits, such as the one for HIV positive individuals, is causing those who were under treatment much trouble. Many have stopped taking ART drugs fearing that their identities would be revealed. They fear social stigma and ostracism if information that they suffer from the syndrome is let out. Under such circumstances, it is vital for the judiciary to step in and ensure that the fundamental rights of citizens are protected.
Faced with odds, the Indian judiciary should not be found wanting in guarding the rule of law enshrined in the Constitution. This is so even while Parliament or the elected representatives are fully entitled to frame laws by keeping the interests of the people in mind. There should be no scope for a conflict of interests, as the people’s and the nation’s interests should be supreme.
