"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, November 10, 2010

A tale of two judgments

Two judgments delivered by the Supreme Court in quick succession are indicative of court’s different approaches in the use of its potential to align law to justice. Pointer is towards Amicus Curiae v. Prashant Bhushan (decided on 10th of November, 2010) and J &K Panthers Party v. Union of India (decided on 9th of November, 2010)

In Prashanth Bhushan, the court could rope in a construction wide enough to reach the conclusion it apparently preferred. The contempt action initiated though technically do not fall within Section 3 (a) of the Contempt of Courts Act 1971, therefore liable to be dismissed on fault of procedural irregularity, was regularized as deemed to be within section 3, and is given a lease of life. In J&K Panthers Party, court used the technicality of the bar by Art. 329 of the Constitution of India and Section 142 of the Constitution of J&K to dismiss the petition. The petition challenged the amendment to Section 3 of the J&K Representation of People Act, 1957, freezing the delimitation of territorial constituencies of the Legislative Assembly until the publication of census result of 2026. It also challenged the amendment of the Constitution on the basis of violation of basic structure.

The court found quick answers that; one, judiciary is barred from entertaining such a petition, two, the constitution does not promise same value for votes nor does it speaks about arithmetical precision in the matters of delimitation. Therefore the amendment cannot be said to be violating the basic structure norm of ‘free and fair election’.

In Prashant Bhushan, though Section 3 clearly lays down requirements of registering a contempt action and the Registrar has failed to observe the mandate, the same was condoned. The petition was treated as one in which cognizance was taken suo motu regularising it under Section 3.

It is not my argument that judiciary should have bypassed an express bar in the Constitution which would have invited another set of criticisms. Instead of finding refuge under constitutional bar, it could have taken certain issues by the horns. The petitioner has raised issues of SC/ST representation and the differential value of each vote due to the freezing. The court says that there could be practical and historical reasons that could legitimise the legislative action. Having said this, one is left in lurch divining what could be these reasons. Neither the respondent detailed what these reasons are nor the court found it necessary to ask. It is important to know the rationale as what is under challenge here is a fundamental aspect of democracy, ‘fair elections’. Moreover, the constitution may not have mandated arithmetical precision but it also says that ‘as far as practicable, the ratio between population of each constituencies and the number of seats allotted shall be the same throughout the state.’ This is a positive mandate to the state and if the state is taking any actions to the contrary, it is their duty to establish with reasons the need of variance. When they failed to do so, court is the forum for people to seek answers and judiciary is expected to call for reasons to align the law with justice so that it maintain institutional relevance in the eye of the people.

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