Democratic Murder of Democracy

Office of Profit Bill & OBC Quota Policy both give an impression to all that parliamentarians are merely looking after themselves: translating into law an attitude of "so-long-as I'm-all-right Jack."

Supreme Court on May 29 and President on May 30 tried their best to show the dark face of Left supported Govt. But Govt. doesn’t want to see his dark face in the mirror of the reasons sighted by the both highest constitutional authorities.

Govt. should not forget that now even the poorest man, even the most illiterate, the unlettered tribal knows that he has the most valuable right with him to teach a lesson to the politicians, at least for five years!


Govt. with the Left support becomes dictator

Indian Supreme Court issues notice to government over quota issue questioning the basis for the government's decision to reserve 27% of the seats in universities for members of the Other Backward Class group of castes. The notice also asked the government to explain how this move would be implemented without depriving meritorious students from the "forward" castes their fair chance at securing seats. The court also wanted the Centre to explain the basis on which castes would be classified as "backward" or "forward".

By returning the Office of profit Bill, Kalam wanted "comprehensive and generic" criteria for the exemptions. The criteria should be "fair and reasonable" and applicable in a "clear and transparent" manner across all states and union territories. He urged both Houses of Parliament to reconsider the propriety of the applying the law with retrospective effect.


The executive and legislature cannot pass laws to overcome

Left and Congress also married inconvenient. They fight in the states and shake hands in the center to keep NDA out. We have pseudo-secularist Govt., Pseudo parliament with pseudo opposition. Left is in double roll to support Govt. and also oppose it out side.

The knee-jerk reaction is to pass a new law or amendment to cancel the impact of the court decision. This is happened again in the case of the “office of profit” controversy and the orders to demolish unauthorized buildings in metropolitan cities. Reservation to OBC on the basis of 1931 survey to divide the country on caste basis is also a sign of wild rule. Law minister, like a trustee of Gandhi family Bhardwaj said that he is the only authority of law. Italian origin Sonia Gandhi acts like a dictator of India. All is being done in the name of democracy as did Hitler, Mussoline and Indira Gandhi.

But past decisions of the Supreme Court indicate that Parliamentarians cannot neutralize the impact of judicial decisions by merely passing another law. The vice pointed out in the judgments has to be cured if the new law is not to be shot down once again.


Indira Gandhi inaugurated Dark side of democracy

Hammer on Fundamental rights: Dark side of democracy started when in reaction to the decisions of the Supreme Court, in 1971 the Parliament of India passed an amendment empowering itself to amend any provision of the constitution, including the fundamental rights.


Supreme Court responded to wipe the darkness

On April 24, 1973, the Supreme Court responded to the parliamentary offensive by ruling in the Kesavananda Bharati v. the State of Kerala case that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure".

The doctrine could thus famously be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment of 1975, which attempted, among other provisions, to pass legislative judgment over the election of Indira Gandhi in 1971.The Supreme Court won laurels for its courageous stand in exposing this amendment as being against the concept of rule of law and an attempt to undermine democracy.

After Indira Gandhi lost her election petition in the Allahabad High Court (in June 1975), and while her appeal in the Supreme Court was pending, the Constitution Thirty-Ninth Amendment Act, 1975, was rushed through Parliament: all in the course of a day, the Congress party having an overwhelming majority in both Houses. In effect, the Thirty-Ninth Amendment provided that notwithstanding any judgment of any court, the election of a Prime Minister could never be and would never is deemed to be invalid or void. The amending power was invoked virtually to strike out an item listed before the Supreme Court —. The election appeal of Indira Gandhi! Fortunately, the attempt failed.


Black warrant on civil liberties

The doctrine was however sought to be later overruled by Parliament during the 1975–77 Emergency period in January 1977 when it passed the 42nd Amendment which prevented any court from reviewing any amendment to the constitution with the exception of procedural issues concerning ratification. It was also during this period that the Supreme Court suffered its darkest moment, when it refused to uphold civil liberties from Executive tyranny during the Emergency in the case of Additional District Magistrate of Jabalpur v. Shiv Kant Shukla.


44th Amendment re-searched the soul of constitution

Eventually, in an attempt to put an end to such confrontations, Parliament passed another amendment that stripped the Supreme Court of many of its powers. After that Parliament gave implicit recognition to the basic-structure theory. The Constitutional 44th Amendment Act, 1979, provided that the fundamental right of life and liberty guaranteed by Article 21 of the Constitution could never be suspended even during an Emergency, because the right to life and liberty were basic to the constitutional framework.


Basic Structure doctrine set in stone

The Supreme Court reaffirmed its power of judicial review in the Minerva Mills case. It is said that the Basic Structure doctrine, created in Kesavananda, was strengthened in Indira Gandhi's case and set in stone in Minerva Mills. v. Union of India, Palkhivala successfully moved the Court to declare that clause (4) of Article 368 of the Constitution—which excludes judicial review of constitutional amendments— unconstitutional; in other words, a part of the Contusion itself can violate the Basic Structure of the Constitution. It was in this case that the basic structure doctrine was taken further to apply to cases of determination of state emergency. Where a state government, the Court held, acted against secularism, a basic feature, such policy and action would amount to a "failure of constitutional machinery" within the meaning of Art. 356, that enabled the Centre to declare state emergency.


Still Politicians attacking Judiciary

However, the politicians never abandoned their attempts to outwit judiciary. In 1987, the Supreme Court again had to underline that “if the exercise of the power of judicial review can be set at naught by the state government by overriding the decisions given against it, it would sound the death knell of the rule of law.”(P Sambamurthy vs State of AP).

In the Cauvery Water Disputes Tribunal judgement of 1993, the Supreme Court set aside the law, observing: “It would be unfair to adopt a legislative procedure to undo a settlement which had become the basis of a decision of the court...the object of the Act was in effect to take away the force of the judgement. Such an act on the part of the legislature amounts to exercising judicial power of the state and to functioning as an appellate court or tribunal.”

In 1995, the Supreme Court quashed an amendment to a law made by the Orissa government stating that the legislature had encroached upon the judicial powers, resulting in the infringement of a basic tenet of the Constitution — the rule of law. The court asserted that the legislature had no power to render ineffective judicial decisions by passing another law of the same kind. “

The government recently issued an ordinance to overcome the Supreme Court decision that a voter has a right to know the antecedents of the candidates. It was struck down in PUCL vs Union of India. The government faced a similar situation in the “single directive” case (Vineet Narain vs Union of India), which required the prior permission of the government to start investigation against top bureaucrats. The law was declared invalid.

However, the court has slightly deviated from this approach in certain cases like Bakhtawar Trust vs M D Narayan, delivered in 2003.

And in this vast disparate country — this “land of a million mutinies” as V.S. Naipaul has described it — a Constitution that will not bend (on the side of justice) amidst the winds of political and social change, simply will not last. It will break. Our Constitution works because of its generalities, and because of the good sense, and sensibilities, of the judges when interpreting it. It is that informed freedom of action of the Judges — not unduly burdened by the precedents of the court itself — that, in the end, helps to preserve and protect our basic document of governance.


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By Premendra Agrawal