Article 31C
About it, and complications. Article 31C was originally added by the 25th Amendment, 1971. It was introduced against the backdrop of increasing judicial scrutiny of land reforms introduced by the Government to abolish zamindari; the tussle between the courts and the government was seen in the Bank Nationalization case where it was held mandatory for the government to give due compensation to those deprived of their property.
The original test stated:
"31C. Saving of laws giving effect to certain directive principles: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Provided that where such law is made by the Legislature of a State,the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.".
Articles 39(b) and (c) deal with specific socialistic goals aimed to achieve economic equality. The Amendment sought to exclude judicial review and placed directive principles above fundamental rights. The part of the Article starting "and no law...effect to such policy" which sought to exclude the powers of the courts to review such a law was fortunately struck-down in the landmark Kesavananda Bharti case as violative of the basic-structure of the Constitution, the power of judicial review. The 42nd Amendment, 1976 changed the article from "the principles specified in clause (b) or clause (c) of Article 39" to "any of the principles laid down in Part IV". It meant that where any law declared that it was for the promotion of any of the DPSP, it could not be held to contravene Article 14, 19 or 31--an obvious over-expansion. The changes introduced by the 42nd Amendment were struck down in Minerva Mills v. Union of India, 1980 as unconstitutional and the Article stands as it
existed prior the amendment. A law seeking to promote Article 31C may now be called into question to ascertain if the Act substantially and in spirit seeks to promote economic equality or not.
The scope of Judicial review in India’s “limited Judiciary”
A judiciary, just like a legislature, becomes limited as soon as a written Constitution is adopted. A Constitution manifests the permanent will of the people; different organs of the government are mere creatures of the Constitution and owe their very existence to it.
In India, we have a written Constitution defining and limiting the powers of different organs of the Government, so that none can exercise any arbitrary power beyond what is granted by the Constitution. This was, surprisingly, highlighted by the Supreme Court in Golak Nath v. State of Punjab AIR 1967 SC 1643 in the following words:
No authority created under the Constitution is Supreme: the Constitution is supreme and all the authorities function under the supreme law of the land.
In the Indian Constitution, certain matters are explicitly made non-justiciable and thus, outside the judiciary’s realm. The most striking example of this is the non-enforceability of Directive Principles of State Policy as provided under Article 37 of the Constitution.
Similar restrictions exist in disputes relating to the election of a person as President or Vice-President (Article 71(4)), orders and other instruments made and executed in the name of the President (Article 77(2)), invalidating proceedings of a House (Article 100(2)), irregularity of procedure in Parliament (Article 122(1)) etc.
In India, judicial review is intertwined with judicial policy making and judicial legislation, which has been on a spiraling rise post-Emergency.
The very recent examples of such misuse of judicial power is best seen in the orders of the Supreme Court relating to banning of diesel vehicles above 2000 cc and the subsequent imposition of ‘diesel cess’, regulation of BCCI, prohibition of sale of liquor on national highways, and compulsory playing of National Anthem in movie halls.
By doing so, there has been an enormous wastage of judicial time, massive loss for the State exchequer, and loss of jobs. In fact, the hotel industry was hit so badly by the liquor ban that the Supreme Court was forced to issue a clarificatory order exempting municipal areas from the ban.
In other countries, such measures are done either by the Executive or the Legislature. These actions of the Supreme Court are, according to Professor John Hart Ely, a former Dean of Stanford Law School, impermissible. He also says that the judiciary’s focus should be on the process of government with substantive choices left to the political process.
Further, it is also pertinent to note that the judges are not electorally accountable and that when they declare executive and legislative actions as unconstitutional, they must do it with strict adherence to provisions of the Constitution.
Through a written constitution, we have inherited a limited government and a limited judiciary, and it is imperative that none of the organs of the government encroach upon the territory of each other.
The Courts must refrain from policy making and legislating, which must only be done by elected representatives. The role of the Courts is limited to checking the excesses of the Executive and the Legislature: it must protect the people’s inalienable rights as a sentinel on the qui vive.
An unlimited judiciary undermines democracy when they substitute their own views for those of elected representatives. The Attorney General’s remarks have indeed hit the bull’s eye!
The case of Ranjan Dwivedi v. Union of India (1983 SCR (2) 982)
In Ranjan Dwivedi v. Union of India, the Supreme Court declared that a writ of mandamus cannot be issued to implement Article 39A but the social goal of free legal service and equal justice can be secured only be means of appropriate legislations or schemes. They also deal with a dispute regarding the fees that was payable to an advocate who was aiding the litigation in question as an amicus curiae, or friend of the court. The statutory requirement, as per the Rules of the High Court that applied to this case, the advocate was liable to be paid only Rs. 24. However, the defendant contested this provision and argues that no advocate would be willing to render his services for such a meagre amount and no reputed lawyer would be likely to represent the accused in such a situation. The justification provided for a demand for a higher fee was that since the prosecutor is usually a senior lawyer, the accused also has a right to be provided with a lawyer by the state, based on equal opportunity. The Supreme Court was convinced by this argument and held that the fee payable should be enhanced The court also gave instructions to all state governments to make arrangements for granting legal service free of cost to the poor accused individual.
About it, and complications. Article 31C was originally added by the 25th Amendment, 1971. It was introduced against the backdrop of increasing judicial scrutiny of land reforms introduced by the Government to abolish zamindari; the tussle between the courts and the government was seen in the Bank Nationalization case where it was held mandatory for the government to give due compensation to those deprived of their property.
The original test stated:
"31C. Saving of laws giving effect to certain directive principles: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Provided that where such law is made by the Legislature of a State,the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.".
Articles 39(b) and (c) deal with specific socialistic goals aimed to achieve economic equality. The Amendment sought to exclude judicial review and placed directive principles above fundamental rights. The part of the Article starting "and no law...effect to such policy" which sought to exclude the powers of the courts to review such a law was fortunately struck-down in the landmark Kesavananda Bharti case as violative of the basic-structure of the Constitution, the power of judicial review. The 42nd Amendment, 1976 changed the article from "the principles specified in clause (b) or clause (c) of Article 39" to "any of the principles laid down in Part IV". It meant that where any law declared that it was for the promotion of any of the DPSP, it could not be held to contravene Article 14, 19 or 31--an obvious over-expansion. The changes introduced by the 42nd Amendment were struck down in Minerva Mills v. Union of India, 1980 as unconstitutional and the Article stands as it
existed prior the amendment. A law seeking to promote Article 31C may now be called into question to ascertain if the Act substantially and in spirit seeks to promote economic equality or not.
The scope of Judicial review in India’s “limited Judiciary”
A judiciary, just like a legislature, becomes limited as soon as a written Constitution is adopted. A Constitution manifests the permanent will of the people; different organs of the government are mere creatures of the Constitution and owe their very existence to it.
In India, we have a written Constitution defining and limiting the powers of different organs of the Government, so that none can exercise any arbitrary power beyond what is granted by the Constitution. This was, surprisingly, highlighted by the Supreme Court in Golak Nath v. State of Punjab AIR 1967 SC 1643 in the following words:
No authority created under the Constitution is Supreme: the Constitution is supreme and all the authorities function under the supreme law of the land.
In the Indian Constitution, certain matters are explicitly made non-justiciable and thus, outside the judiciary’s realm. The most striking example of this is the non-enforceability of Directive Principles of State Policy as provided under Article 37 of the Constitution.
Similar restrictions exist in disputes relating to the election of a person as President or Vice-President (Article 71(4)), orders and other instruments made and executed in the name of the President (Article 77(2)), invalidating proceedings of a House (Article 100(2)), irregularity of procedure in Parliament (Article 122(1)) etc.
In India, judicial review is intertwined with judicial policy making and judicial legislation, which has been on a spiraling rise post-Emergency.
The very recent examples of such misuse of judicial power is best seen in the orders of the Supreme Court relating to banning of diesel vehicles above 2000 cc and the subsequent imposition of ‘diesel cess’, regulation of BCCI, prohibition of sale of liquor on national highways, and compulsory playing of National Anthem in movie halls.
By doing so, there has been an enormous wastage of judicial time, massive loss for the State exchequer, and loss of jobs. In fact, the hotel industry was hit so badly by the liquor ban that the Supreme Court was forced to issue a clarificatory order exempting municipal areas from the ban.
In other countries, such measures are done either by the Executive or the Legislature. These actions of the Supreme Court are, according to Professor John Hart Ely, a former Dean of Stanford Law School, impermissible. He also says that the judiciary’s focus should be on the process of government with substantive choices left to the political process.
Further, it is also pertinent to note that the judges are not electorally accountable and that when they declare executive and legislative actions as unconstitutional, they must do it with strict adherence to provisions of the Constitution.
Through a written constitution, we have inherited a limited government and a limited judiciary, and it is imperative that none of the organs of the government encroach upon the territory of each other.
The Courts must refrain from policy making and legislating, which must only be done by elected representatives. The role of the Courts is limited to checking the excesses of the Executive and the Legislature: it must protect the people’s inalienable rights as a sentinel on the qui vive.
An unlimited judiciary undermines democracy when they substitute their own views for those of elected representatives. The Attorney General’s remarks have indeed hit the bull’s eye!
The case of Ranjan Dwivedi v. Union of India (1983 SCR (2) 982)
In Ranjan Dwivedi v. Union of India, the Supreme Court declared that a writ of mandamus cannot be issued to implement Article 39A but the social goal of free legal service and equal justice can be secured only be means of appropriate legislations or schemes. They also deal with a dispute regarding the fees that was payable to an advocate who was aiding the litigation in question as an amicus curiae, or friend of the court. The statutory requirement, as per the Rules of the High Court that applied to this case, the advocate was liable to be paid only Rs. 24. However, the defendant contested this provision and argues that no advocate would be willing to render his services for such a meagre amount and no reputed lawyer would be likely to represent the accused in such a situation. The justification provided for a demand for a higher fee was that since the prosecutor is usually a senior lawyer, the accused also has a right to be provided with a lawyer by the state, based on equal opportunity. The Supreme Court was convinced by this argument and held that the fee payable should be enhanced The court also gave instructions to all state governments to make arrangements for granting legal service free of cost to the poor accused individual.
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