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SC final arbiter of Constitutional validity of Acts: Jalan

April 12, 2007 13:29 IST
Joining the debate on the role of judiciary vis-a-vis legislature, former Reserve Bank of India Governor and nominated Member of the Rajya Sabha Bimal Jalan has strongly backed the courts reviewing the Constitutional validity of legislative decisions, saying the people should have the right to appeal on the executive order.

"The people should have the unfettered right to appeal to the judiciary on the Constitutional validity of legislative decisions taken at the behest of the executive," Jalan said in his new book "India's Politics -- A view from the backbench".

Jalan said there was unanimity among experts that the principle of separation of powers among different organs of the state was an essential feature of India's Constitution and it should remain sacrosanct.

However, the question of where precisely the boundary of separate powers of the legislature and the executive vis-a-vis the judiciary should be drawn has become a matter of controversy.

"There are valid arguments on both sides... My conclusion is that, on balance, the country is better off with the judiciary as an additional checkpoint on legality of actions taken by the legislature and the executive," Jalan said.

His new book follows his earlier book 'The Future of India: Politics, Economics and Governance".

Jalan said it does not mean that the courts are not infallible. In fact, many of the judgments had to be reversed in subsequent hearings. But the average citizen has access to the courts for review unlike the legislature, which are not directly accessible to the people.

"The courts are by no means full of noble sages, but they do provide an additional recourse for restraining the excesses of the executive in the exercise of the enormous powers available to it.

"From the point of view of the average citizen, the great advantage of the judicial review of the decisions taken by the executive and the legislature is that everyone, irrespective of his or her beliefs and political affiliations, has access to the courts. This is not the case in respect of the executive or Parliament or state legislatures," Jalan said.

The other advantage of the judiciary being the arbiter of the legality or otherwise of an executive or legislative decision is that, even if a particular verdict is wrong or socially unacceptable, it is subject to review and reversal.

"This is not the case with legislative or executive decisions unless the government of the day so decides. A citizen has no legal right to ask for a review of the decisions taken by the legislature or the executive, even if these are not in the public interest," Jalan argued.

He was hopeful that the Right to Information Act was an important step forward in making the executive accountable to the people directly. "However, in case of any unjust or partisan decisions taken by the government, the remedy would still lie with the judiciary."

The author, who is the country's well-known economist, said that on balance, the long-term interests of the public are safer when the Supreme Court continued to remain the "watchdog of India's democratic conventions and the final arbiter of the Constitutional validity or any law or action approved by the legislature or the government of the day".

Jalan expressed concern over individual ministers, some of them politically heavyweights, taking vital decisions without taking the Cabinet into confidence.

"If on the one hand, the Cabinet cannot be assumed to be collectively responsible for ministerial pronouncements and on the other hand, ministers cannot be held individually responsible, then who should take the responsibility," he asked.

"This question has become even more pertinent in the light of the diminishing role of Parliament in enforcing the accountability of the Council of Ministers," he said. He said each minister, irrespective of his or party affiliation, should be individually made responsible for achieving annual targets announced by the government in areas of interest to the people.

"In case of failure, the responsible minister should be expected to relinquish office for at least one year," Jalan added.

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