WHO WATCHES THE WATCHMEN?: JUDICIARY, FUNDAMENTAL RIGHTS AND JUDICIAL RESPONSIBILITY
I. Introduction
A constitution performs a number of functions. A constitution constitutes and
legitimises political authority, prescribes limitations on the powers that may be exercised by and authorises actions (in the sense of grundnorm) of the latter, and performs integrative function by giving expression to the shared goals, aspirations, values and basic beliefs of the people adopting it. Such goals etc. that the constitution mandates the State to achieve can be termed as constitutional goals. Where a constitution combines integrative as well as limiting functions, like that of the Indian constitution, an inevitable fallout is the unbalanced power distribution among the three organs of the State. The executive, by virtue of control over
resources to design and implement the constitutional goals, and the judiciary, as it has the final word on the constitutional goals, wield more power that the legislature, which is the incarnation of the legitimate representative authority of people.
Fetters are designed within the constitution to prevent abuse of power by the persons in office and to keep the dialogue facilitating constitutional and political changes between the governed and the governor going. The restrictions on the exercise of these powers have taken shape through responses to historical events. This does not, however, mean that the value of philosophies informing state formation can be overlooked. 3 These restrictions too have not always been successful in providing responsible governance, and alternative or additional measures are suggested in the discourses of constitutional law and politics to better ensure responsibility.
The judiciary is but a branch of the State. It is also subject to certain restrictions. Law and governance essentially being a human endeavor suffers from the risk of fallacies. The fetters on the judiciary are sometimes found wanting. The problem sought to be analyzed in this paper is stated in the following paragraph along with highlighting the solution that the author seeks to suggest.
It will not be incorrect to state that the Indian Supreme Court has played an invaluable role in promoting human rights in India. The journey of the Supreme Court so far has not been a smooth and un-faltered one. 4 The Supreme Court has tried to insulate itself from the influence of the political branches of the government in order to secure the independence of the judiciary. However, occasionally, it has gone overboard. One such instance is in the ruling in Naresh Shridhar Mirajkar v. State of Maharashtra 5 where the Court excluded the higher judiciary (the Supreme Court and the High Courts) from the test of fundamental rights for actions classified as judicial function. 6 The Supreme Court has consistently followed the ruling in Mirajkar. 7
In this paper, it is argued that this position of law is incorrect and needs to be
reversed. The arguments are interlaced around the idea of constitutionalism, primacy of fundamental rights over the powers of the State and the need for greater accountability of the judiciary for the exercise of its powers. Section II briefs the importance of fundamental rights and its role in governance of the country. Section III seeks to establish that the judiciary is primarily an organ of the State and should be treated as such. Section IV deals with the issue of accountability of the judiciary. The issue is complex and all its facets cannot be addressed here due to the constraint of space. Therefore the arguments in this paper are restricted to only one of the steps that needs to be taken in order to ensure accountability. Finally, in Section V, the Mirajkar ruling is discussed on the basis of the arguments developed in the paper.
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Advocate, New Delhi
B.S.L., LL.B. (ILS Pune); LL.M. (NALSAR Hyderabad)
The author would like express his deepest gratitude to Ms. Sathya Narayan, Dr. Jaya Sagade and Dr. SS Jain of ILS Law College, Pune, and Prof. Amita Dhanda, NALSAR University of Law, Hyderabad for their valuable comments on the drafts of this paper. Thanks are also due to Ms. Shruti Iyer, Mr. Ram Krishna Das and Ms. Kalyani Tulankar, who made this paper possible.
1 Ulrich K Preuss, “Constitutionalism – Meaning, Endangerment, Sustainability” in Satish Saberwal and Heiko Sievers (eds.), Rules, Laws, Constitutions, (Sage Publications, New Delhi, 1998)
2 On the value of the ideologies and philosophies informing the notion of constitution, see Upendra Baxi,
“Constitutionalism as a Site of State Formative Practices”, 21 Cardozo LR 1183 (2000).
3 See SP Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, 2002; Upendra Baxi, “The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]justice” in SK Verma and Kusum Kumar (eds.), Fifty Years of the Supreme Court of India: Its Grasp and Reach, (Oxford University Press, New Delhi, 2000); Madhav Khosla, “Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate”, 32 Hastings ICL, 55 (2009).
4 (1966) 3 SCR 744: AIR 1967 SC 1
II. Fundamental Rights: On the Why
“In delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, the people reserved to themselves certain fundamental rights, so called, because they have been retained by the people and made paramount to the delegated powers”
Patanjali Sastri, J.[1]
An organised civil society vests the government with the legitimacy for use of compulsion and constraint (alternatively, force) in order to maintain peace and security without which no human development is ever possible. To discharge these functions – and the expanding role of the State as a ‘welfare State’ – certain powers are necessary and were granted to the State. However, power should not be granted without circumspection. In order to secure the citizens from the ‘might’ of the State, certain basic freedoms are guaranteed to the people and entrenched – entrenched, meaning, kept out of reach of the State. The justification for these rights may be historical, philosophical or structural.[1] However, what is commonly accepted is that the preservation of these basic values, what we all call as fundamental rights, is the very purpose of creating the State and therefore the rights of the people were entrenched. Keeping these basic values out of the reach of the State is necessary to prevent abuse of powers by the State machinery.
Enumeration of rights in the constitution, among other things, signifies the supremacy of the constitution in the country. Nevertheless, it should be noted here that even in written constitutions, the text alone is not all that is there in the realm of constitutional law. The “constitutional whispers” and the ideology informing them are verily part of it.
The unique advantage of a written bill of rights, in the opinion of the author, is that it provides a first principle basis to look into in hard cases, where theories or other adherents such as precedent alone cannot serve the purpose effectively. It serves as the net that prevents the fall. There are diverse conceptions of the bill of rights and none of these is wrong.[1] The bill of rights (or fundamental rights) is the highest guarantee for the preservation of individual liberties against encroachment by the State. The idea of constitutional supremacy, or constitutionalism, signifies a limited form of government, among other things. Constitutionalism, in other words, signifies the powerlessness of the government machineries against the basic liberties (or values) of the citizens and of freedom and democracy. There can be no exceptions to this foundational idea of constitutionalism, and any exception to this idea only indicates the death of constitutionalism and the basic liberties of citizens. Fundamental rights also seek to deliver justice to those historically wronged. To illustrate the last mentioned purpose with the help of Indian constitution, Article 17 is the guarantee given to ameliorate the condition of the people who had been through untold sufferings in the past.
5 The functions of the judiciary are categorised as administrative and judicial. These are discussed below under “Testing the Judiciary on the Touchstone of Fundamental Rights”.
6 Triveniben v. State of Gujarat, AIR 1989 SC 1335: (1989) 1 SCC 6778; Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 177: (2002) 4 SCC 388
7 A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27. Emphasis supplied.8 For a detailed discussion on these approaches and an attempt at developing a general theory integrating various approaches, see Robert Alexy, A Theory of Constitutional Rights, (Julian Rivers trans.), Oxford University Press, 2002
9 See David A Strauss, “The Role of a Bill of Rights”, 59 UCLR 539 (1992). The conceptions about a bill of rights include notions of its role as well as approaches to interpreting its provisions.
III. Powers of the State and their Repository
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on governments would be necessary.”
James Madison[1]
The powers of the State can be broadly classified into three – legislative, executive and judicial. These powers are vested in three different branches respectively – the legislature, the executive and the judiciary. These branches of the State have been kept separate from each other, although in the Indian context we will find some overlap between the legislature and the executive. The main idea behind the separation of power is to create a form of check and balance to ensure that the persons exercising these powers do not become despotic. In order to achieve this, the judiciary is kept independent of the other two branches. Independence of the judiciary is the intermediary value that helps in attaining the value of impartiality. Impartiality, in turn is an intermediary value which is a tool to curb tyranny by elected persons and secure the basic liberties and the aspirations of democracy.
As mentioned already, the State is the legitimate user of force for the purpose of maintenance of peace and security. Hence, to prevent abuse of this power, the use of force was kept with the executive and the authorization for such use in the judiciary. The legislature was
mandated to make rules and regulations for the sanction and use of force. From this classical model, which is but one conception of the phenomenon, where the only function of the State was to maintain peace and security, the State has now become a ‘welfare State’, touching upon almost all aspects of our lives. The judiciary performs the important function (among others) of checking arbitrary exercise of powers by the legislature and the executive. In the political scenario in India, where the judiciary is playing an ever increasing role, the need to check arbitrary exercise of powers of the judiciary is of great importance.
The judiciary, today, is addressing issues concerning all aspects of life of the people and is exercising its power in greater measures than ever witnessed earlier in history. While the legitimacy of judicial activism may lie in the popular support of the people, the judiciary should not make promises that cannot be delivered. There are various constraints on the judiciary and the exercise of its powers. The judiciary has constantly tried to insulate itself from the influence of the other two branches of the State. The Indian judiciary is pursuing a “novel system of constitutional governance”[1] through enforcing fundamental rights. The Supreme Court is actively widening the repertoire of fundamental rights and engaging in innovating legal principles and jurisprudence. The string of cases under Article 21, especially those which incorporate international law principles, bear testimony to the expanding horizons of the role of the Indian judiciary. However, it is important to note that the judiciary is but another organ that partakes of the ‘sovereignty’ of the State, and therefore, the exercise of power by it should be constrained. The author does not seek to justify or contest the approach of the Supreme Court here, more than stating that constitutional innovations should be circumspect.
10 Federalist Papers No. 51
11 Shubhankar Dam, “Lawmaking beyond Lawmakers: Understanding the Little Right and the Great Wrong (Analysing the Legitimacy of Judicial Lawmaking in India’s Constitutional Dynamic)”, 13 Tulane JICL 109 (2005)
IV. Accountability
“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it.”
Lord Acton[1]
The judiciary is the adjudicative branch of the State. To state in broad terms, the judiciary is charged with the duty of settling disputes and protecting the fundamental rights of people guaranteed by the Constitution. These can broadly be classified as statutory/ common law adjudication and constitutional adjudication. The judiciary is vested with powers necessary to discharge these functions. In this manner, a duty-power to adjudicate is created. The duty-power relation subsumes responsibility for the discharge and exercise of that duty-power. Judicial responsibility may be explained as the duty to be accountable for the exercise of judicial power. While it will be generally agreed that the judiciary should be made accountable, there may be differences over the contours of that responsibility – to whom (not in real terms, which may be stated as being accountable to the people and the Constitution, but in terms of pragmatic enforcement) and for what actions should the judiciary be accountable – and institutional mechanisms that need to be adopted to ensure it.
In ensuring responsibility of judges to people, a lot rests on the judges themselves – their morality and righteousness. However, provisions for public spirited citizens to question their judges, too, go a long way in ensuring accountability. In this paper, the focus is only on the latter, and in that only one particular step that needs to be taken is dealt with. Max Rheinstein argued that “[n]othing but virtue restrains the [judges]” and pointed out that all efforts (including institutional mechanism) at securing accountability rests on the will of the human
agency which ultimately sits in judgment over conducts of persons in power.[1]
Without disputing the general truth in Rheinstein’s statements, and noting that
public opinion and awareness of the citizenry are the key to a successful
democracy, it is argued in this paper for one important tool (part of
institutional mechanism) to empower the citizens to safeguard their rights.[2]
The exercise of powers by the legislature and the executive is subject to fundamental rights. However, this is not the case with respect to the higher judiciary.[1] It was held in Mirajkar’s case that the higher judiciary is not subject to the test of fundamental rights. This position was subsequently affirmed in a several judgments.[2] In the following section, this judgment and the law as held in it has been analysed.
12 Essays on Freedom and Power, Beacon Press, Boston
V. Testing the Judiciary on the Touchstone of Fundamental Rights
“... [I]f the highest Court of a State should candidly deny to one litigant the rule of law which it would concededly apply to all other litigants in similar situation, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws?”
Frankfurter, J.[1]
5.1. Naresh Shridhar Mirajkar and Beyond
In the famous and sensational trial for libel against the then Editor of “Blitz” Shri R.K. Karanjia on the Original Side of the High Court of Bombay, a witness Mr Bhaichand Goda, requested that his evidence not be published. Justice Tarkunde hearing the matter passed an oral order prohibiting publication of Mr Goda’s evidence which was given in open court in a public hearing.[1] The petitioner felt aggrieved by the said oral order passed and moved the High Court by a Writ Petition under Article 226 of the Constitution. The Division Bench of the High Court refused to interfere with the order on the ground that judicial orders are not amenable to challenge under Article 226. Hence, a writ petition was filed by journalists for violation of Article 19(1)(a) seeking a writ of certiorari against the order of the Division Bench of the High Court as they were directed not to publish the evidence given by Mr Goda in their respective papers. Eight out of nine judges[2] held that judiciary is not “State” under Article 12, and that a writ of certiorari will not issue against a superior court, i.e. the High Courts and the Supreme Court. It was held that High Courts are not inferior to the Supreme Court and are as such not subject to the writ jurisdiction under Article 32. The Court observed that the judiciary in the discharge of its judicial functions cannot be considered as “State” for the purpose of Part III. Although this proposition may be correct in principle there are certain exceptions, as will be demonstrated later.[3] It is submitted the proposition as held by the Court is too wide and does not consider certain finer aspects of the judicial functions of courts.
5.2. Can the judiciary violate fundamental rights?: An Illustration[1]
Right to speedy trial is a fundamental right.[1] The Supreme Court under Article 32 and the High Courts under Article 226 can grant compensation in cases of violation of fundamental rights.[1] Where the delay in the trial is caused by a court and not by the police or the prosecutor is it not a violation of fundamental rights of the accused? Should the accused be entitled to compensation? This question was before the Calcutta High Court in Dilip Malik v. State[2]. In this case revision petition was filed by accused against the sentence of seven years of rigorous imprisonment awarded to him. The conviction was set aside in the revision when it was finally heard after seven years of delay. The Court, in spite of noting that there was gross violation of the fundamental right of the revision petitioner due to “sheer inaction and unjustifiable inadvertence”, held that compensation cannot be granted. In the opinion of author, there was a violation of fundamental right as read into Article 21 by the Supreme Court and the accused should have been awarded compensation, notwithstanding the Mirajkar ruling. The Mirajkar ruling pertains to writs being issued. Hence, the High Court could have granted compensation without being hit by law of precedent.
5.3. Definition of “State”
To
answer the question whether these fundamental rights are applicable to the
judiciary, two important issues need to be addressed:
i) whether the judiciary is “State” under Article 12?
ii) Whether judgments are “law” as defined in Article 13(3)(a)?
The popular understanding of the word includes the legislature, the executive and the judiciary. Although the definition under Article 12 does not expressly include the judiciary, it does not exclude it either. As the definition is inclusive, it can reasonably be inferred in favour of including the judiciary to the definition. Further, the definition has to be read contextually as is evident from the language of the Article. Article 32 empowers the Supreme Court to issue various writs including certiorari. Certiorari is generally available against judicial action in excess of jurisdiction, or in violation of principles of natural justice, or for an error of law on the face of the record. Some Articles in Part III of the Constitution specifically contemplate the judiciary in their operation.[1] It is pertinent to point out that the observation of the Supreme Court that the High Courts are superior courts and therefore not subject to writ jurisdiction of the Supreme Court is incorrect in law and unnecessarily curtails the power of the Supreme Court. It also affects the scope of the fundamental right under Article 32. An examination of the scheme of the Constitution, specifically Articles 136, 141 and 226(4) makes it clear that the High Courts are subordinate to the Supreme Court.[2] Another valuable consideration is the linguistic import of the words “supreme” and “high”. Suffice it to say that the High Courts are certainly subordinate to the Supreme Court and should be subject to the powers of the latter under Article 32.[3]
Is the judgment of a court “law” under Article 13? Before proceeding to answer this, the important issue of whether “law” can be the only subject matter of violation of fundamental rights has to be considered. Article 13 declares any law in force which is inconsistent with the provisions of Part III. It further establishes the supremacy of the constitution by subjecting all future laws to the provisions of the Constitution. Clause (3) defines “law” for the purpose of this Article. This Article has been provided because the State primarily functions by and through law, or in accordance with law. Therefore, in order to ensure that the authority of actions is valid, the provision under this Article has been incorporated. In effect, the constitution is the law validating all other laws, which in turn validate State action. Law, as widely understood under the definition in Article 13(3)(a), is not the only form of State action. Actions taken in the exercise of power conferred by a valid law, or actions taken in discharge of duties by the State through its officers, may also violate fundamental rights. Relief is available even against the exercise of such powers or performance of such duties that violates fundamental rights.
Without prejudice to the argument that law alone need not be the subject matter of violation of fundamental rights, the issue of whether judgments are “law” as contemplated for the purpose of Part III is considered here. Judgments per se are not law under Article 13. A reading of Article 13(3)(a), although inclusive and subject to requirements of context, makes it clear that only legislation and delegated legislation are contemplated under the definition. Judgments interpret and apply existing law. “Law” as defined in Article 13(3)(a) includes in its scope only laws that are “made” and not those merely expounding or laying down correct position of law. However, if the “institutional theory”[1] is accepted, those judgments, which bring into operation laws on subjects where there is no law or policy guidelines, fall within the ambit of “law” as contemplated for the purposes of Article 13. In other words, legislations (so to say) of the judiciary made during the course of discharge of its judicial functions[2] should be categorised as “law” for the purpose of Part III.
The final aspect in this work is the applicability of the fundamental rights to the judiciary. Analysis of the functions of the judiciary is necessary here. The functions of the judiciary can be classified under three categories: legislative, where courts make their own rules; executive, where the appointments of various officers of the court are made; judicial, where the judiciary essentially settles disputes and declares what the law is.
It is accepted that in its legislative and executive character, the judiciary is subjected to fundamental rights.[1] While interpreting the law and finally deciding disputes, the courts’ action should not be open to challenge for violation of fundamental rights. If judicial decisions are open to challenge under Article 32, there would be no end to litigation.[2] If there is an error or any grievance, the appropriate remedy is an appeal or revision. Of course, this is not to say that the constitutional principles can be disregarded in the exercise of discretion. A judge has to bear them in mind. If the contrary view is held law, all judgments will be open to frivolous challenges.
At the same time, two important situations have to be considered: first, when the judiciary is “making” or “filling the vacuum in” law, since it is not merely explaining the correct position of law, the judiciary should be subject to these constitutional values; and second, all non-decisional orders should be subject to the test of fundamental rights.[1] Non-decisional orders are those which are issued by courts during the course of proceedings, for a better and smoother functioning, and does not dispose of the matter or settle the dispute.
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13 Max Rheinstein, “Who Watches the Watchmen” in Paul Sayre (ed.), Interpretations of Modern Legal Philosophies – Essays in Honor of Roscoe Pound, 589 – 610 (Fred B Rothman & Co., Littleton, Colarado, 1981 Reprint)
14 It should be noted that judicial accountability is a multifaceted issue. For an overview of the generally agreed principles relating to judicial accountability, see Justice Arthur Chakalson et al. (ed.), International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, International Commission of Jurists, 2007, available at http://www.icj.org/dwn/database/PG-J&L-ENG.pdf last accessed 4 October, 2010
15 Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744: AIR 1967 SC 1
16 See authorities cited in n. 6 above.
17 Snowden v. Hughes, (1944) 321 U.S. 1 at p. 1618 See V. Parabramha Sastri, “The Right to Publish Testimony of Witness”, (1967) 7 JILI 102 for a discussion on trial in open court and the right under Article 19(1)(a).
19 Gajendragadkar, C.J. delivered the majority judgment for himself, Wanchoo, Mudholkar, Sikri and Ramaswami, JJ. Sarkar, Shaw and Bachawat JJ. delivered separate but concurring judgments. Hidayatulla J. dissented.
20 See below “5.5 – Applicability of Fundamental Rights to the Judiciary”.
21 See for some illustrations pertaining to Article 17 and 22, H.M. Seervai, Constitutional Law of India para 7.110 (4th ed. Universal Law Publications, New Delhi, 1996).
22 Hussainara Khatoon (I) v. Home Secretary, Bihar, AIR 1979 SC 1360: (1980) 1 SCC 8123 Rudul Shah v. State of Bihar, AIR 1983 SC 1086: (1983) 4 SCC 141
24 (1991) Cr LJ 2171 (Cal)25 See Articles 20, 21 and 22. Cf. K. Subba Rao, Some Constitutional Problems, 104 (University of Bombay, 1970)
26 Hidayatulla, J. observed that “[u]nder the total scheme of the Constitution the subordination of High Courts to the Supreme Court is not only evident but is logical” in Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744: AIR 1967 SC 1 at para 122.
27 See Hidayatulla, J. in Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744: AIR 1967 SC 1, para 104 to 120 for a detailed discussion on the history of certiorari as it developed in England and the constitutional provisions in India; Seervai, n 21 above, at para 7.112 to 7.114; S.P. Sathe, “Constitutional Law – I (Fundamental Rights)”, 1967 ASIL 1 at p. 7; V. Parabramha Sastri, n 16 above.28 See Rajeev Dhavan, “Judicial Law-making and “Committed Judges””, 1977-78 DLR 24.
29 See e.g. Laxmi Kant Pandey v. Union of India, AIR 1987 SC 232: (1987) 1 SCC 66; Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Vineet Narain v. Union of India, (1998) 1 SCC 226.
30 See Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996; State of Punjab v. Ajaib Singh, AIR 1953 SC 10; Ranjit Singh v. Union Territory of Chandigarh, (1991) 4 SCC 304; State of Bihar v. Bal Mukund Shah, (2000) 4 SCC 640.
31 S.P. Sathe, Administrative Law, 556 (LexisNexis, 7th ed., Third Reprint 2008)
32 Shri Seervai, although mentions instance of non-decisional orders, does not expressly draw this distinction. His view seems to be that the judiciary per se is State under Article 12.
VI. Conclusion
The Indian judiciary has been instrumental in many a reforms in the country. The Supreme Court of India has indeed, to use Prof. Baxi’s parlance, transformed into the Supreme Court for India. However, the question is, if constitutionalism is the idea of limited government, the government feeling powerless, how can the judiciary then, which is but one branch of the government, not be subject to fundamental rights, the highest guarantee to the citizen? “There is no worse heresy than the fact that the office sanctifies the holder of it.”[1] Ironically, this has been the position for over five decade now and the judiciary has been consistently affirming this erroneous position of law. It is in the best interest of the country and its citizens that this position be reversed.
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