Writer P.A.Krishnan is accepting the view that Judiciary should not and could not undo the laws enacted by the Parliament.His view is alarming. For India the written Constitution is supreme document.While it has been amended multiple times right from 1951, in Kesavananda Bharati case Supreme Court had given a verdict that the basic structure of the Constitution could not be altered.
If a Party which comes to power can alter the Constitution in whichever way it likes - it would be difficult for any Country to survive. Every proposed law in India is vetted by Law Ministry.This is because the law that gets enacted should be within the framework of the Constitution. If an aggrieved party finds that the Law violates the Constitution then the party can challenge the Law in the Court. The Court is the only place for a common man to challenge an enacted law.
Article 32 of the Constitution provides the Supreme Court the powers for Remedy. Article 142 empowers the Supreme Court to make orders as is necessary for doing complete Justice and also for the passing orders for enforcing it. Perarivalan was released by the Supreme Court with the powers provided by the Article 142. This is written constitution. India follows predominantly Common Law and also the Civil Law. The Common Code is the Case Laws which becomes the Precedents. Civil Code is the written word. So the precedents of the Supreme Courts are also laws.
Though Parliament could amend the Constitution which was done first in 1951 for the Article 19, how far it could do is a right question.There are boundaries that has to be set. The Party in power now would not be the eternal party that would rule India.But Constitution is eternal in relative terms. So the basic structure of the Constitution has to be safeguarded. If it was not safeguarded may be BJP could not have been in power today.
The Indian Constitution's Preamble clearly defines the three basic elements - Equality, Fraternity and Liberty and Justice - economic, political and Social. Every article of the constitution has been debated well by the constituent assembly and enacted.
Let us see some the Articles of the Constitution in Part III.
Article 13(2) - The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
It has been mentioned as this Part. This part refers to the Fundamental Rights Section.
What are the Fundamental Rights.
Article 14 - Right to equality before law.
Article 15 - Right to access Public Places.
Article 16 - Right to Employment
Article 17 - Abolition of Untouchability
Article 18 - Abolition of titles
Article 19 - Right to Freedom of Expression and Speech
Article 20 - Protection in respect of Conviction of Offences.
This article 20 has one of the most beautiful line i've ever read,
"No person shall be prosecuted and punished for the same offence more than once"
Article 21 - This is one of the most important Article of the Constitution - it is Right to life and Personal liberty.
Article 22 - Protection against arrest and detention.
Article 23 - Protection against exploitation through human Traffic and Forced Labour.
Article 24 - Protection of Children in work.
Article 25 - Freedom of Religion
Article 26,27,28 also speaks about the Rights of the Religious minorities.
Article 32 - This is most important article of the Constitution as it acts the law of Remedy. If injustice is done to an Individual by the enacted law of Parliament should the common man accept it because it is elected by the Majority or should he see a way for Remedy. If he should find a way for Remedy where should he go. To wall and bang his head.He has to go the law courts.And this article gives that power for Supreme Court to enforce any of the right conferred in this part.
Apart from this Constitution has Directive Principles of State Policy - these Articles gives the States the directions and guidelines while framing the policies. Right to Education which is now in Article 21A was earlier a Directive Principle of State Policy.
The Constitution is not an isolated document in the world. India has ratified ICCPR (International Covenant on Civil and Political Rights) and ICESCR (International Covenant on Economic Social and Cultural Rights). Both are Treaties. We also have an UDHR (Universal Declaration of Human Rights). Together all three are called International Bill of Human Rights. Much of the Articles in the UDHR , ICCPR and ICESCR correlates with what is written in Indian Constitution on Human Rights. ICCPR largely correlates with Fundamental Rights section and ICESCR correlates with the Directives of State Policy. While India is not Monist like US but a Dualist International Treaties plays a bigger role. Article 51 and Article 253 emphasizes about implementing the International Treaties.
So - there has to be body that protects and safeguards the Constitution. The Parliament makes laws. The Supreme Court is to interpret the laws. Each body has its functions and India does have horizontal distribution of powers between Parliament , Judiciary and Executive.It is not vertical. No body is superior to the other. India is India and will be India because of its basic tenets.And the basic Tenets is provided by the Constitution and it has to be protected. And Supreme Court is only body which could do it through the powers given to it by the Constitution.
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