Wednesday 17 July 2013

The Need for Judicial Restraint

The Need for Judicial Restraint
-by Justice Markandey Katju

Two judgments of the Supreme Court of India decided on 10thJuly, 2013 regarding disqualification of MPs and MLAs and one interim order of the Allahabad HC banning caste rallies have been a subject of great deal of discussion and debate recently.

I have perused and considered them, and with great respect to the courts which passed these orders I have serious reservations about their correctness.

In Lily Thomas vs Union of India the SC declared section 8 (4) of the Representation of the People, 1951 as unconstitutional.

Section 8(4) states:-

“Notwithstanding anything in sub- section (1), sub- section (2), or sub- section (3)] a disqualification under either sub- section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court”.

In Government of Andhra Pradesh vs P. Laxmi Devi (2008) the Supreme Court considered at great length the doctrine of judicial review of statutes (from paragraph 31 onwards). In paragraph 36 of that judgment, it was observed that invalidating an act of the legislature is a grave step and should never be lightly taken. A court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question (vide paragraph 41).

The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the state must respect each other and must not ordinarily encroach into each other’s domain. In paragraph 44 of the judgment it was observe that there is one and only one ground for declaring a statute  to be invalid, and that is if it clearly violates some provision of the constitution in so evident a manner as to leave no manner of doubt.

Keeping the above considerations in mind, one fails to see how Section 8(4) could be held to be unconstitutional.

The bench has given two reasons for its verdict: Firstly, it held Section 8 (4) violative of Article 102 and its corresponding provision Article 191 of the Constitution. A careful perusal of Article 102 show that there is nothing therein which makes Section8 (4) inconsistent with it.

Article 102(1) of the Constitution states:
1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament

In my opinion none of the 5 clauses in Article 102(1) are attracted so as to invalidate Section 8(4). Clause (e) is not attracted because section 8 (4,) which is a law made by Parliament, specifically states that a legislator convicted is not disqualified during  pendency of his appeal, if made within 3 months.
            Secondly, the Supreme Court has held that Parliament had no legislative competence to enact Section 8 (4). This reasoning, too, is difficult to accept because entry 72 to list1 of the 7th Schedule specifically gives power to Parliament to legislate on elections to Parliament or the State legislatures. It is well settled that legislative entries in the Constitution are to be widely construed, and in any case Parliament has residual power under entry 97 to list 1.
The second judgment of the Supreme Court in CEC vs Jan Chawkidarialso deserves reconsideration because it has held that if a person is in jail or police custody he cannot contest an election.
The SC has relied on the definition of elector in section 2 (e) of RP Act, 1951, and observed that in view of Sections 3, 4, and 5, to be qualified for  membership of the legislature one has to be an elector.
Section 2(e) defines elector as follows:
 " elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950; (43 of 1950 .)

There is no mention of section 62(5) of the 1951 Act in the definition of ‘elector’ in Sec 2(e). It is therefore difficult to understand how the SC relied on Sec 62(5) for disqualifying persons who are in jail or police custody from standing for elections. There is a distinction between a voter and an elector Section 62 (5) only debars a person in jail from voting, not from contesting an election.

If the view of the Supreme Court is accepted then a rival politician need only get a false FIR filled against his political rival and have him sent to police custody or jail to disqualify him.

 As regard the interim order of the Allahabad High Court with due respect I submit that it requires to be reviewed.

 Firstly because the view taken by the High Court required a final, well considered judgment and not an interim order, and secondly there is no legal bar to a caste rally, as long as no law is violated. In fact Article 19 (1) (b) gives citizens a fundamental right to assemble peaceably.  A political party can call a meeting of a caste e.g. the dalits to discuss the problems facing that community, and there is no law barring such a meeting.

With respect, the above decisions of the Supreme Court and High Court have made/amended the law, which function was in the domain of the legislature vide Divisional Manager,AravaliGolf Course v Chander Haas 

I make it clear that I am totally against criminalization of politics or casteism, but the problem we are discussing is not about one personal’s view but about the correct legal position.


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  2. I do not have knowledge of law but your article focuses on some of the key factors of legal procedures. Thank you!

  3. Justice Katju, In one way you do not support the casteism and other way you do defend the caste based rallies by different political parties with referencing the fundamental right in article 19 1 b. How about parties like Mayawati who address such rallies in UP and say- "Tilak Taraju or talwaat, Inko maaro jute chaar". How do you make law to stop people for dividing people based on caste? Some one ( Court ) in this case has to start from somewhere. Other India will be divided on these lines of hatred for next 1000 years.

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  5. Going by your yard stick in the first case, as a lay person, I wonder if what Mrs Gandhi did to circumvent the courts by arbitrarily amending the constitution to suit her position was right.

    Yes the ruling that a person who is incarcerated cannot contest elections is pretentious and will be exploited by many opportunistic politicians to corner their rivals. But as for the ruling perse, I feel is welcome relief where criminals and convicts have usurped legislatures at will.

    As for the caste rally , the courts ruling is against the very right provided by the constitution to assemble freely, but I feel serious discussions must be rendered before we agree upon banning caste based rallies. They do become a bulwark for polarisation. That too has to be taken into consideration. Don't you think so?

  6. Sir,I would prefer middle path between your view and the view of Hon'ble Supreme court in first judgement you have written about. I would say that instead of declaring section 8 (4) of the Representation of the People, 1951 as unconstitutional court could have passed a mandate that the appeal or applications pertain to the sentence or conviction should be disposed of within 1 month or any reasonable time period as court deems fit. In respect of second judgement you have stated I would say that the second judgement may be a result of first judgment(abovesaid) because even if both the cases have been decided one after other or simultaneously judges do discuss crucial matters with their colleagues hence there is strong likelihood that first drastic decision might have resulted in second venturous decision of court.

  7. The Constitution of India, like all other constitutions in the world, is a document that not only owes its origin to socio-political events in the past, but is also meant to shape them in future. Had the Supreme Court not ventured beyond the text, Keshavananda Bharati would not have been possible---nor the events that shaped the country's democratic future. Sir, your own judgment in Aruna Shaunbagh was progressively activist, and the decision in Baldev Singh v. State of Punjab was definitely a big vault over many statutory provisions. Confronting the systemic malady of criminalization of India's political system is urgent need of the hour and if the Parliament doesn't deal with it , why not the judiciary--that has a rich history of such path-breaking judgments from time to time?

  8. Let the sleeping dogs lie !

    I think it was Oliver Cromwell who said these famous words – may be in a different context , at a different time , in a different country
    But right now , in our beloved India , our very own ( not so beloved ? ) political leaders seem to be telling the Supreme Court , the same thing !
    Yesterday , Supreme Court dismissed a Central Government appeal to review its earlier ruling , which held ;
    “ An elected representative stands disqualified from the date of his conviction in a criminal offence . The mere fact that the convicted politician has appealed against his conviction does not imply that he would continue to hold office “
    So , what will the Government do now ?
    With solid , unanimous backing from ALL political parties , it will amend the Representation of People Act , to nullify the Court verdict !
    Of Course , retrospectively from 15 Aug 1947 !
    I am not surprised , given the following statistics compiled by Association for Democratic Reforms :----


    Party ……………% age of MPs/MLAs with criminal charges


    BJP………………………. 31
    Congress…………….. 22
    Shiv Sena……………. 75
    JD(U)………………….. 44
    SP………………………. 43
    Rest …………………….. 32-36

    Not having voted for past 30 years , I have a satisfaction of not having chosen myself , which party will torment / torture / murder me for next 5 years !
    But of course , I will vote when I am allowed to cast “ Negative Votes “ !
    When will India’s youth rise in revolt ?

    • hemen parekh

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