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Saturday, March 29, 2003

The March 13 verdict of the Supreme Court (SC) on candidate disclosures declaring Section 33B of the Representation of the People (3rd Amendment) Act, 2002 (Amendment Act) illegal, null and void, and reiterating its earlier judgment on May 2, 2002, generated a serious countrywide debate on the jurisdiction of courts.

On May 2, the SC held that citizens have the fundamental right to know the antecedents of candidates for elective office, as part of freedom of expression guaranteed under Article 19(1) of the Constitution. But Section 33A of the Amendment Act provided for disclosure of only part of the criminal record. No other disclosure including assets and liabilities of candidates was required. Section 33 (B) specifically sought to nullify the Court judgment of May 2, by declaring, "Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or another instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder". It is this provision whose constitutionality was challenged. The Court on March 13, 2003 declared that obtaining relevant information about the candidates is indeed a fundamental right under Article 19 (1), and as the Parliament had no power to make such a law abridging fundamental rights [Article 13 (2)], such a law is void.

It is the SC's duty to interpret fundamental rights and review laws and executive actions in the light of those rights. In this case, the Court merely declared the citizens' right to know about the candidates as fundamental right, and held that the law which abridged such a right unconstitutional and void.  Clearly, the Court acted within its jurisdiction.

The SC has, time and again, drawn the boundaries of judicial review. The Court often has cautioned against interference in policy matters. For instance in an earlier judgment (Nalla Thampy Terah  vs Union of India, 1985), the Court refused to hold explanation 1 under Section 77 of the RP Act, 1951 unconstitutional. This provision of law states that all election expenditure incurred by a political party or a third person shall not be counted as election expenditure for the purpose of expenditure ceiling imposed by law! Though this exemption clearly makes a mockery of law, the Court refrained from interfering on the ground that as long as the constitution is not violated, " we cannot negate a law on the ground that we do not approve of the policy which underlines it". Happily, the Parliament is now ready to enact a funding reform law, which among others, repeals this perverse 'explanation'. In respect of disclosures, the law sought to abridge the fundamental right of citizens to know about candidates, and therefore the Court held the law null and void.

True, there were earlier decisions of the Court through which it may have encroached on the legislative or executive jurisdiction. For instance, the Court decisions to the effect that only SC will decide on the appointments to higher judiciary are highly questionable. In no functioning democracy does the judiciary appoint itself. In several countries, there are institutional mechanisms to prevent arbitrary appointments. In the US, all such appointments should be approved by the Senate, and in certain  States the subordinate judges are even elected directly by the people.

Similarly, in their anxiety to promote what they considered to be sound policies, courts sometimes tended to make policies. For instance, the efforts to prescribe fee structure in private educational institutions, the direction to close down all industries en masse in a locality, and the decision to impose a certain fuel for vehicles are all highly questionable and contentious.  By such decisions the judiciary became vulnerable to accusations of usurpation of legislative and executive authority.

The executive and legislature lacked the moral authority and courage to counter such tendencies, because their credibility in the public eye was seriously eroded. Certainly there is a case for corrective action to redress such imbalances.  For instance many jurists themselves have advocated a National Judicial Commission to advise on appointment and removal of judges of higher courts.

In the early years of the American republic, there were instances of judicial encroachment into executive sphere. Thomas Jefferson rejected such excesses, and correctly held that while on matters of adjudication, interpreting the Constitution and upholding the fundamental rights, the Court's authority was final, on purely executive matters and policies, the President's decisions were final. Such a stand requires clarity, credibility and moral courage.

Unfortunately several parties and politicians are using the wrong case to attack the SC. By all means we should restore the constitutional balance among the three organs of state, and ensure effective checks and balances.  But we cannot violate the citizens' fundamental rights in the process. The Parliament, the government and the Courts are meant for the service of the citizens, and people are the ultimate sovereigns in a democracy. No amount of sophistry, obfuscation, and defense of the indefensible will convince people otherwise. That is why in all surveys, nearly 99% of all people have been demanding disclosure of candidates' antecedents.  Over the decades, our republic has been stolen from us, and the battle for reclaiming that republic for our people has just begun. Power games and turf wars cannot be allowed to undermine our liberty and democratic process.

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