Judiciary: India (powers, functions)
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Contents |
Power of judicial review
On ordinances
The Hindu, January 3, 2017
Krishnadas Rajagopal
SC widens boundaries of judicial review of ordinance
Apex court will scrutinise whether satisfaction to promulgate ordinance was based on relevant material or spurred by an oblique motive
In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court widened the boundaries of judicial review to the extent that it can now examine whether the President or the Governor was spurred by an “oblique motive” to bypass the Legislature and promulgate an ordinance.
In case the apex court concludes that the President or the Governor was influenced by ulterior motives to promulgate the ordinance, such an act by the two constitutional authorities would amount to a fraud on their powers, the apex court held on Monday.
The satisfaction
“The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review,” Justice D.Y. Chandrachud wrote in a common judgment with Justices S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageshwara Rao.
Justice Chandrachud observed that the apex court would scrutinise whether the satisfaction of the President or the Governor to promulgate an ordinance was based on relevant material or whether it amounted to a “fraud on power or was actuated by an oblique motive.”
The seminal question
The seminal question that came up in reference before the seven-judge Constitution Bench led by Chief Justice of India T.S. Thakur dealt with the constitutionality of seven successive re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance of 1989. The State government had approached the Supreme Court after the High Court of Patna declared that repeated re-promulgation of the ordinances was unconstitutional after relying on the D.C. Wadhwa judgment on the dos and don’ts of promulgation of ordinances by another Constitution Bench of the Supreme Court in 1986.
Confirming the High Court’s view, Justice Chandrachud, supported by Chief Justice Thakur in a separate judgment, held that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.”
Mandatory obligation
“The requirement of laying an ordinance before Parliament or the State Legislature is a mandatory constitutional obligation cast upon the government,” Justice Chandrachud held in the common judgment.
Laying down moral guidelines
Racist jokes against Sikhs
SC: Courts can't lay down moral guidelines, Feb 08 2017: The Times of India
The Supreme Court ruled out any blanket ban on “sardar“ jokes, saying the judiciary could not lay down moral guidelines for citizens and that it should not pass orders on how people should conduct themselves.
A bench of Justices Dipak Misra and R Banumathi said it was part of the fundamental duties, as laid down in the Constitution, that people should respect each other and no particular community should be joked about, but expressed its reservations about passing an order to ban the jokes. Courts cannot lay down moral guide lines for citizens.
Although fundamental duties are part of the Constitution and people must have respect, but how can court pass order on such issues,“ the bench said, while referring to Article 51A which says that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood among all, transcending religious, linguistic and regional or sectional diversities.
The apex court has been examining the case since October 30, 2015, when it agreed to hear a PIL seeking a ban on sardar jokes for being racist, ridiculing Sikhs and projecting them as foolish and naive. The petitioner, advocate Harvinder Chowdhury , contended that cracking jokes against a particular community amounts to racial abuse and hurting religious sentiments. The bench, however, said it was for Parliament to frame laws. “Some people laugh when they hear jokes, some are reserved.How can we issue guidelines as to how people should conduct themselves?“ the court said.
Vis-à-vis the executive
SC:`Resist meddling in policy decisions’
AmitAnand Choudhary, Jan 25, 2017: The Times of India
Defining the scope for judicial intervention, the Supreme Court said on Tuesday that policy decisions taken by the government should not be open to judicial review if they pass the test of reasonableness.
A bench of Justice Ranjan Gogoi and Justice Ashok Bhushan quashed the judgements of Delhi HC and Madras HC which had set aside the Centre's decision not to increase the number of attempts for physically handicapped candidates belonging to OBC while increasing the number of attempts for the physically handicapped belonging to the `General' category from 4 to 7 in the 2007 Civil Services Examination.
The court said there was nothing arbitrary in the decision taken by the Centre and the HCs should not have interfered with it.
“It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary , offending the basic requirement of Article 14 of the Constitution,“ the bench said.
It said it was for the government to decide on how and in what manner the reservations should be made and such a policy decision normal ly would not be open to chal lenge, subject to its passing the test of reasonableness.
“There is one more rea son due to which we are unable to subscribe to the vi ew taken by the Madras HC and Delhi HC. The horizontal reservation and relaxation for the physically handicapped category candidates for the Civil Services Examination, is a matter of governmental policy and the government after considering the relevant materials has extended relaxation and concessions to the physically handicapped candidates belonging to the Reserved category as well as General category ,“ it said.
See also
Supreme Court: India (mainly SC's rulings)
Supreme Court, India: Administrative issues
Supreme Court: India: Chief Justices
Supreme Court: India: Sitting judges
Judicial appointments, senior: India mainly the Collegium debate
Judiciary: India (powers, functions)
