[Assam] Parliament has no power to bar judicial scrutiny of laws

[Nayanjyoti Medhi]

NEW DELHI: The Supreme Court's judgment on the Ninth Schedule laws has only
reaffirmed and reinforced the judicial intolerance towards legislative
attempts to tinker with the basic structure of the Constitution or the
fundamental rights guaranteed to the citizens.

Though it is not landmark, this verdict will shine like a bright star in the
increasingly polluted political sky, for rarely have nine judges, sitting
together, expressed their views unanimously as they did in this case.

The nine-judge Bench unambiguously stated that Parliament has no power to
bar judicial scrutiny of laws put in the Ninth Schedule, for the apex court
is constitutionally mandated to find out if they violated the fundamental
rights and basic structure of the Constitution.

With this judgment, the usual rumbling has begun in political circles, which
are wary of the judgment coming in the way of putting reservation laws into
the protective Ninth Schedule.

Still, more than the usual noise is being made that the judiciary is trying
to stifle Parliament's legislative will, which is nothing but a reflection
of people's will.

Keeping the argument 'Parliament's will is people's will' aside for a while,
a look at our democratic governance will tell us that it is carried on by
three instruments legislature, executive and judiciary.

All three wings owe their place and power to the fountainhead the
Constitution of India, which has created and empowered them on a mandate
from "we the people of India''.

And, simply put, they are but creations of the Constitution. If that is so,
then it will be a legal harakiri or a political bluff for any of the three
organs to call itself superior to the Constitution and lay claim to a power
to do something overreaching the blue book itself.

No doubt, the legislature or Parliament has the power to enact laws to meet
situations that the nation finds itself in its march forward, but the
legislative solution to a problem cannot be of such nature as to
horrendously offend the core of the Constitution.

That is why it made sense when the apex court said that though Article 368
empowers Parliament to amend the Constitution, this power cannot masquerade
as people's will to subvert the basic framework of the Constitution,
fundamental rights included.

Once the mischief of a belief 'Parliament's will is peoples will' gains
ground, it could lead to catastrophic results. We have seen such examples in
the recent past, as well as in the small history of independent India.

Recently, a few MPs were caught on camera taking money for asking questions
in Parliament. They also represented a sizable population between four lakh
and seven lakh people depending on the size of their constituency.

If one discounts this as an aberration, what of the P V Narasimha Rao
government, facing a no-trust vote in Lok Sabha in 1993, having won it with
the shameful distribution of money that helped the Rao government cobble up
the wafer-thin majority?

Did that also reflect people's will? Lastly, the Emergency proclamation was
passed by Parliament in 1975 by a majority vote when the entire Opposition
was locked up in jails. Was that an act of Parliament synonymous with
people's will?

That is why, the Constitution provided the three organs of governance a
definite role.

Parliament will enact laws as per the people's will, nay their
representatives' will, and it is for the judiciary to test the laws on the
touchstone of fundamental rights and basic structure of the Constitution to
find whether they are actually for the people or not.

-- 
Nayanjyoti Medhi
Advocate
Gauhati High Court

Chamber:
Satya Bora Lane, Dighalipukhuri East
Guwahati-781001, Assam

Residence:
8, Chandan Nagar Bye Lane-2
Basistha Road, Guwahati-28
Assam

Phone:
+91 361 2416960
+91 94350 43007
+91 99547 13443

Email:
nayanjyoti.medhi at gmail.com
nayan_5 at hotmail.com
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