Judges Do Make Law

According to Douglas W.Rae, the election laws “are of special importance for every group and individual in the society, because they help to device those who write others laws”. Hence it is expected that “the electors should choose as their representatives wiser men than themselves and should consent to be governed by their superior wisdom.  The Election Commission has plenary power for taking appropriate steps to ensure free and fair elections. The Election Commission under Article 324 of the Constitution of India enjoys wider executive, legislative and quasi-judicial powers.  In the case of Association of Democratic Reforms v. Union of India, AIR 2001 Delhi 126, the Delhi High Court held that for making a right choice by electors in regard to the candidate at the election, it was essential that the past of the candidate should not be kept in the dark and directed the Election Commission to secure to the voters information pertaining to each of the candidates contesting elections, if the candidate is accused of any offences punishable with imprisonment, what assets he is possessed of and information for judging the capacity and suitability of the candidate including details of educational qualifications etc. An appeal was filed by the Union of India contending that the High Court ought to have directed the writ petitioners to approach the Parliament for appropriate amendments to the law. The Hon’ble Supreme Court vide order dated 2nd May, 2002 has directed the Election Commission to call for information on affidavit by issuing necessary orders as to whether the candidate is convicted of any criminal offence, what assets are possessed by him or his/her spouse and that of the dependants. The Supreme Court also has directed to call for information about educational qualification of the candidate and the liabilities, if any, regarding over-due of any public financial institutions or Government dues.  The Election Commission after approaching the Ministry of Law and Justice has issued the direction in terms of the order of the Supreme Court and thus it secured to voters information pertaining to each of the candidates in the matter of record of past conviction and details of sentences, if any, details of pending cases six months prior to the date of nomination, assets and liabilities of candidate, spouse and dependents and educational qualifications of the candidate in order to cleanse our policy and restore its independence, credibility and integrity. A candidate with criminal antecedents etc. is opposed to democracy and social order and unless such a candidate is nipped in the bud at the threshold, he is likely to cause turbulence after getting elected shaking the socio-economic-political system is an otherwise healthy, wealthy, effective and vibrating society. It was not liked by the political parties. In order to water down the directions issued by the Election Commission, the Central Government introduced an Ordinance and the Act. The amendment introduced in the Election Law diluted the judgment of the Supreme Court. Consequently feeling aggrieved, a PIL was filed in the Supreme Court challenging the validity of the amendment which diluted the effect of the order of the Election Commission. As per the amended Representation of People Act, a candidate was required to disclose his criminal past after being elected to the Speaker.  The Hon’ble Supreme Court by its order dated 13-3-2002 has declared Section 33-A of the Act to be ultravires and void. The Supreme Court re-affirmed the right to information as a fundamental right and held that any law violating the said right is unconstitutional and void.  The question raised before the Hon’ble Supreme Court was whether the Government was competent to over turn the direction issued by the Election Commission of India which were based on the mandate issued by the Apex Court. The answer to the question is contained in Articles 141, 142 and 144 of the Constitution of India. The general rule is that the legislature may not destroy, annul, setaside, reverse, modify or impair the final order of the Supreme Court and a statute attempting to do so has been held unconstitutional as an attempt on the part of the legislature to exercise judicial power and as a violation of constitutional guarantee of due process of law.  The judgment of the Supreme Court, it appears, has annoyed the political parties who even want to put the person having criminal record as their candidate in the election. It is their political expediency. It appears that they will meet soon to find out a working solution to vindicate their stand. It further appears from the statement of leaders of political parties that they are going to criticize the judiciary by contending that the judiciary, in the purported exercise of its power of judicial review, is expanding its territories beyond all reasonable limits and intruding into areas which exclusively belong to the Executive. They would assert that the judiciary has indulged in un-usual usurpation of power and reckless adventurism. In short, they may disturb the delicate balance of distribution of powers and functions between the three wings of the State, the Legislature, the Executive and the Judiciary. In short the political parties are in a mood to attack the Supreme Court for its activism as they feel that the Supreme Court is becoming more and more assertive and even aggressive in ensuring enforcement of public duties, and want to dub the judicial activism as “Judicial Extremism”. Our Supreme Court probably the strongest in the world is most powerful. It has vast powers. It can take the side of a small voter against the Government processes. Inspite of this political parties of all hues are united when their vested interests are eroded.  “Judicial Activism is an ascriptive term”, says eminent Jurist Prof. U. Bari. It means different things to different persons. Some take it as reflecting dynamism of the judges. There are persons who regard it with “judicial creativity”, while some take it as a step towards developing laws with a view to meet the crying necessities of the society and fulfilling the aspirations of the people. As ESO JSC rightly observes “It would be tragic to reduce Judges to a sterile role and make an automation of them. I believe it is the function of the Judges to keep the law alive, in motion and to make it progressive for the purposes of arriving at the end of justice, without being inhibited by technicalities to find every conceivable but acceptable way of avoiding narrowness that spells injustice. Short of being a legislator, a Judge to my mind must possess an aggressive instance in interpreting the law”. Lord Denning puts it more bluntly “It is no longer necessary for the Judges to wring their hands and say there is nothing we can do about it, whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the Judge can and should — remedy it by reading words in, if necessary.  The concept of stitching the cloth is the business of the legislature whereas straightening the creases is the province of the judiciary, has long been abandoned as a broken tool.  There is another aspect of the matter and “judicial activism” may be justified. In Union of India v. Association of Democratic Reforms AIR 2002 SC 2112 the Hon’ble Supreme Court has observed that it is issuing direciotns to the Election Commission to call for information on affidavit by issuing order in exercise of powers under Art. 32 read with Arts. 141 and 142 of the Constitution. The high water mark of judicial creativity was reached in the cases of Golaknath (AIR 1967 SC 1643), Kesawanand Bharti (AIR 1973 SC 1461) and Maneka Gandhi (AIR 1978 SC 597). Subbha Rao, C. J. declared a rule making role for the Supreme Court in Golaknath’s case by stating that Arts. 32, 141, 142 are couched in such wide and elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice. The Supreme Court has accepted that it discharges a law making role, the judges observed that they do and must legislate. The Supreme Court has shared with the opinion of Justice Homes of the Supreme Court as well as of Lord Reid, Lord Denning and Prof. Griffith had maintained that the Judges do make law and denounced the outmoded theory that the Court only finds the law but does not make it. So a great crisis is just brewing which needs to be defused by a conscientised awakening so that electioneering may not be reduced to the power of money and muslces where the candidates could even resort to “terrorising” the electorate to suit to the designs their professional political “bosses”. The law abiding citizens of this great country should, therefore, come forward and declare that they would not exercise their right of voting in favour of the candidate who would not abide by the directions of the Supreme Court by which it directed to secure to voters information pertaining to the candidates educational qualifications, his assets, record of past commission and details of sentence, if any, details of any pending cases six months prior to the date of nomination and to foil any attempt made by the political parties to challenge the authority of the Supreme Court on the allegation that it is intruding into areas which exclusively belong to the Executive, or Legislative bodies whereas as per Art. 144 of the Constitution all authorities, civil and judicial are duty bound to act in aid of the Supreme Court and under S. 32 read with Arts. 141 and 142 the Supreme Court is empowered to formulate legal doctrines to meet the ends of justice. If election reforms are side-tracked the entire system shall crumble. It has had enough of strains so far.

Author Name: Hon’ble Justice Panachand Jain