On the occasion of the Independence day, Hon’ble Chief Justice of India Shri. S. H. Kapadia spoke his mind on a variety of issues. In particular, he cautioned the Government that the drafting of laws today was not satisfactory and suggested that they keep this in mind before making any changes in the constitutional scheme of things.
“The purpose of today’s address is to highlight the importance of what is called as “the decisional independence” and “the institutional independence” of the Judicial branch under the Constitution of India.
Over the last six decades, the Supreme Court has rendered several landmark judgments on Fundamental Rights, very few landmark judgments have been delivered on the constitutional structure provided for under the Indian Constitution, distribution of legislative powers, provisions dealing with relationship between the Centre and the States, Establishment and Constitution of Supreme Court [Article 124], impeachment [Article 124(4)].
The Indian Constitution is more than a written text. A superficial reading of selected provisions of the written constitution, without more, may be misleading, It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and rule of law. These principles must inform our overall appreciation of the constitutional rights and obligations not only of citizens, but also of the three branches of Government including, the judiciary under the highest legal Code of the country, namely, Constitution of India. Our democratic institutions accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. However, each of the three participants, under the Indian Constitution, is duty bound not to disturb the structural checks and balances which are specifically provided for in the Constitution, which happens to be a written detailed Constitution of 395 Articles.
Transparency and accountability have got to be there for all the three branches. However, qua Judicial branch, “the decisional independence” is the key concept. Under the provisions of the Indian Constitution, checks and balances are provided for which protect “the decisional independence” and, thus, the decisional authority of the Judicial branch. Therefore, proper comparative constitutional jurisprudential principles have got to be kept in mind before tinkering with this delicate balance provided for under the Indian Constitution. Why has the Constitution provided for “institutional independence” of the Judicial branch? Institutional independence of the judiciary reflects a deeper commitment to the separation of powers amongst the three organs of Government. However, it inheres in adjudication under the Constitution, because the rights protected by the document are rights against the State. All these considerations have to be taken into account if the Government or the Parliament wants to enact laws which may touch “the institutional independence” as well “the decisional independence“. Our Constitution is not only concerned with the rights of Individuals, Groups and Governments but also with the structure and the Legitimacy of our Governing Institutions. Judicial independence consists not only of Institutional Independence but also of Decisional Independence and therefore it should not happen that in making the Judiciary accountable the principle of judicial independence is abridged. As a note of caution, drafting of laws today is not satisfactory. This caution is required to be kept in mind before making any changes in the constitutional scheme of things.
“Justice is like oxygen. There is no reason to notice it if you have it in abundance, as we do today. However, as you constrict the flow it becomes more and more important until a point is reached where nothing else matters at all.”
By Justice Spigelman, former Chief Justice of Supreme Court of NSW, Australia”.
*Speech delivered by Hon’ble Shri. S. H. Kapadia, Chief Justice of India, on the ocassion of the Independence Day on 15.08.2012
“As a note of caution, drafting of laws today is not satisfactory. This caution is required to be kept in mind before making any changes in the constitutional scheme of things” CJI.
Many times in judgments the Supreme Court and various High Courts judges have made cautionary remarks for executive segments of governments to be more careful in complying with procedures and legal requirements. However, unfortunately such remarks, and even directions fails to achieve desired result when it comes to working by government officials.
In case of drafting of law utmost caution is required so as to ensure compliance and consistency with the highest law code that is the Indian Constitution from which authority is derived to make law. However, it appears that many provisions are made which are not consistent with the provisions of the Constitution but they cannot be tested because it is not always possible for general public to challenge the validity of law. For example by including in ‘income’ government is trying to include many receipts which are not income but ‘capital’, however, in all cases public cannot challenge such provisions.
Similarly in case of service tax merely by drafting or coining definitions totally unnatural meanings are given to service, where there is no service at all. These provisions are not in conformity with the provisions of the Constitution of India. Merely including a receipt in definition of income does not make such receipt income, because there is liability to repay the sum received, or the sum received is capital an not income. Similarly declaring some activity or omission of activity as service , the activity or omission of activity cannot become a service, however, attempt is made to tax receipts for such nature which are not for any service rendered. The problem is it is not possible to challenge such provisions as unconstitutional for a person from general public.
Some special meaning can be assigned to an item by adopting wider meaning of words used in the Indian Constitution. That does not mean that a thing which does not fit at all in the scope of particular item, word or entry in lists found in the Constitution can also be treated as covered by the Constitution.
It seems that carelessness in drafting of law has become a routine matter. The casual, careless, and who care approach is adopted because of the thinking that law can be amended at any time and with any period of retrospective effect. This approach is also finding support from courts because courts are also allowing retrospective amendments liberally when it comes to benefit of governments. If we have a look on retrospective amendments we find that most of retrospective amendments have been made for benefit of the government and to negate judicial pronouncements in favor of public. There are very few retrospective amendment in favor of public.
We find that many times lacunae in drafting of provisions as found in the relevant Bill are pointed out by authors of articles, however, any care is not taken during process of legislation and then when courts hold against revenue, retrospective amendments are made. For example in case of Service Tax on commercial renting, in articles published just at Bill stage , authors have pointed out and suggested proper drafting, however it was not taken care at that time, then when Courts struck down relevant notification, the law was amended with retrospective effect by adopting almost same language as suggested by me in published articles.