is this provision whose constitutionality was challenged.
The Court on March 13, 2003 declared that obtaining relevant
information about the candidates is indeed a fundamental
right under Article 19 (1), and as the Parliament had no
power to make such a law abridging fundamental rights [Article
13 (2)], such a law is void.
is the SC's duty to interpret fundamental rights and review
laws and executive actions in the light of those rights.
In this case, the Court merely declared the citizens' right
to know about the candidates as fundamental right, and held
that the law which abridged such a right unconstitutional
and void. Clearly, the Court acted within its jurisdiction.
SC has, time and again, drawn the boundaries of judicial
review. The Court often has cautioned against interference
in policy matters. For instance in an earlier judgment (Nalla
Thampy Terah vs Union of India, 1985), the Court refused
to hold explanation 1 under Section 77 of the RP Act, 1951
unconstitutional. This provision of law states that all
election expenditure incurred by a political party or a
third person shall not be counted as election expenditure
for the purpose of expenditure ceiling imposed by law! Though
this exemption clearly makes a mockery of law, the Court
refrained from interfering on the ground that as long as
the constitution is not violated, " we cannot negate
a law on the ground that we do not approve of the policy
which underlines it". Happily, the Parliament is now
ready to enact a funding reform law, which among others,
repeals this perverse 'explanation'. In respect of disclosures,
the law sought to abridge the fundamental right of citizens
to know about candidates, and therefore the Court held the
law null and void.
there were earlier decisions of the Court through which
it may have encroached on the legislative or executive jurisdiction.
For instance, the Court decisions to the effect that only
SC will decide on the appointments to higher judiciary are
highly questionable. In no functioning democracy does the
judiciary appoint itself. In several countries, there are
institutional mechanisms to prevent arbitrary appointments.
In the US, all such appointments should be approved by the
Senate, and in certain States the subordinate judges are
even elected directly by the people.
in their anxiety to promote what they considered to be sound
policies, courts sometimes tended to make policies. For
instance, the efforts to prescribe fee structure in private
educational institutions, the direction to close down all
industries en masse in a locality, and the decision to impose
a certain fuel for vehicles are all highly questionable
and contentious. By such decisions the judiciary became
vulnerable to accusations of usurpation of legislative and
executive and legislature lacked the moral authority and
courage to counter such tendencies, because their credibility
in the public eye was seriously eroded. Certainly there
is a case for corrective action to redress such imbalances.
For instance many jurists themselves have advocated a National
Judicial Commission to advise on appointment and removal
of judges of higher courts.
the early years of the American republic, there were instances
of judicial encroachment into executive sphere. Thomas Jefferson
rejected such excesses, and correctly held that while on
matters of adjudication, interpreting the Constitution and
upholding the fundamental rights, the Court's authority
was final, on purely executive matters and policies, the
President's decisions were final. Such a stand requires
clarity, credibility and moral courage.
several parties and politicians are using the wrong case
to attack the SC. By all means we should restore the constitutional
balance among the three organs of state, and ensure effective
checks and balances. But we cannot violate the citizens'
fundamental rights in the process. The Parliament, the government
and the Courts are meant for the service of the citizens,
and people are the ultimate sovereigns in a democracy. No
amount of sophistry, obfuscation, and defense of the indefensible
will convince people otherwise. That is why in all surveys,
nearly 99% of all people have been demanding disclosure
of candidates' antecedents. Over the decades, our republic
has been stolen from us, and the battle for reclaiming that
republic for our people has just begun. Power games and
turf wars cannot be allowed to undermine our liberty and