New Delhi: Ignoring strong opposition from the Modi government Interference Laying down a new procedure for appointment of Chief Election Commissioner and Election Commissioners, the Supreme Court on Thursday said it is a “myth” that the judiciary Can’t make law.
A constitution bench of the apex court led by Justice KM Joseph said that “it is not open to the legislature to play the role of a judge and usurp judicial work for itself”, courts can “make laws” and it cannot amount to a violation of the “separation of powers” principle.
Separation of powers implies that each of the pillars of a democracy – the executive, the legislature and the judiciary – function separately and operate as separate institutions. Segregation prevents the concentration of excessive power by any branch of government.
The Supreme Court on Thursday ordered that Election Commissioners (EC) be appointed by the President of India on the advice of a panel consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party) and the Chief Justice. of India. The new process is similar to the one that chooses the director of the Central Bureau of Investigation (CBI).
The decision overruled the practice prevalent in India since independence, under which election commissions were appointed by the President on the advice of the Council of Ministers.
Ordering the new mechanism, the court said top officials of the election watchdog enjoy “almost infinite powers” and therefore, “they should not be specifically and exclusively selected by the executive without any objective criteria”.
On the allegation of judicial activism, a five-judge bench headed by Justice Joseph observed that apart from making the state function to achieve the goals declared in the Directive Principles along with the fundamental rights of citizens under the Constitution, judicial activism A mere passive role, as opposed to activism, “may be a much needed option”.
But this activism “must have a solid judicial basis” and “cannot degenerate into the exercise of subjectivity”, the bench warned.
‘What is the law, it should be the final decision of the court’
The system under which the CEC and EC were appointed is laid down in the Constitution, which states that the President will make appointments on the advice of the Council of Ministers. However, the Constitution also states that the said procedure shall be followed until the Parliament makes a law on the same.
The non-promulgation of a law for a new process of appointments led to a set of petitions being filed in the apex court in 2015. He demanded changes in the appointment process to make it more transparent and an independent Election Commission.
Noting this shortcoming, the court said that despite the various “noises and voices” made on the issue and the consideration of the “founding fathers”, the law had not been made. The court argued for judicial intervention in the matter, saying that the absence of such a law “creates a void or void”.
The court also pointed out that it was clear why political parties were not coming forward with legislation – this was because “there is a vitally important link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation”.
Reflecting on the concept of “demarcation of powers”, cited several times by successive governments to prevent judicial interference in policy matters, a Constitution bench on Thursday said that “unlike the position in the United States, there is demarcation of powers in India”. There is no strict separation. America and Australia”.
According to the bench, the “principle that the courts cannot or should not make laws” is a myth which “has been busted long back”. The court also took note of a 2007 judgment in which the apex court had considered the “favourite subject” of “separation of powers”.
But at the same time, the Bench explained, the value of this principle lies in “a delicate, but efficient and at the same time legitimate, balance that must be struck by the organs of the State in the exercise of their respective powers”.
Justice SB Sinha wrote in the 2007 judgment saw: “With reference to the constitutional scheme each organ of the State performs one or the other function assigned to the other organ. While the drafting of laws and its implementation are by and large the functions of the legislature and the executive respectively, it is too late to say that the role of the Constitutional Court in this regard is non-existent.
As per the 2007 judgement, “judge-made law is now well recognized all over the world”. “If one lays down the principle of separation of powers so rigidly, it would not be possible for any High Court in any country, whether developed or developing, to create new powers through an interpretive process, otherwise we Let us envisage the country being turned into a state of relaxation. Social engineering as well as institutional engineering is therefore part of this obligation,” the court had said.
A Constitution bench on Thursday observed that courts are not a remedy for “all ills in society” and they should not “try to run the government and behave like emperors”.
The judgment examined the constitutional obligations cast on the judiciary. It pointed out that a High Court, while performing its constitutional duty, can declare a law made by the legislature to be invalid, and within limits and cannot be accused of “violating the principle of separation of powers”. . It can also make unconstitutional amendments and cannot be charged for “not observing the limits prescribed by the constitution”.
If “separation of powers is part of the basic structure of the Constitution of India”, there is “judicial review”, the bench said.
The court further remarked that “while it may be true that the Constitution is supreme and all disputes must ultimately be settled under the auspices of the Constitution, in a sense the court should be the final arbiter of what is law”.
Talking about the doctrine of separation of powers, the bench explained that “it is meant to prevent tyranny of power flowing from the perception of excess power in one source”.
the right to vote is fundamental
On the “right to vote”, the five judges of the bench were unanimous in elevating its status as a constitutional right, but four of them abstained from issuing a declaration, holding that it violated “judicial discipline and propriety”. Will be against
The bench said, this cannot be done because the bench of equal strength had 17 years ago The right to vote is not a fundamental right but a statutory right.
While Justices Joseph, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar did not favor overturning the earlier judgement, Justice Ajay Rastogi was of the view that it was time for the Constitution Bench to step forward and declare that the right to vote is a fundamental right. have rights.
The observations made in the judgment are likely to revive the debate on voting rights and the apex court’s 2006 judgment is likely to be revisited. If the right to vote becomes a fundamental right, it becomes protected from any interference likely to curtail it.
Two views on the right to vote examined the interpretation and limitations laid down in Article 326 of the Constitution which deals with elections to the House of the People and the Legislative Assembly of each State. The provision states that the election shall be on the basis of voting by adults, which means a citizen who is not less than 18 years of age.
Justice Joseph, in the majority opinion, noted that prior decisions on voting rights never specifically dealt with the issue.
The 17-year-old judgement, which said that the right to vote was not fundamental, was related to the case of veteran journalist Kuldip Nayar. The judgment related to the validity of a certain amendment relating to domicile in the State for being elected to the Council of States. However, according to the SC’s Thursday judgement, the election of the Council of States is not the same as the House of the People.
The order combined Article 326 with other parliamentary laws, such as the Representation of the People Act, to hold that every adult citizen, unless disqualified, is entitled to be listed on the electoral roll.
In his minority view on the debate, Justice Rastogi rejected the 2006 judgment in its entirety and considered it too restrictive on the right to vote. He felt that “it is time to declare (the right to vote) as a fundamental right”. According to him, there are conflicting views on its position and therefore, it gives the bench “an opportunity to authoritatively hold that the right to vote is not merely a statutory right”.
(Editing by Nida Fatima Siddiqui)