Download - politicians and law
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA
PROJECT TITLEPOLITICIANS AND LAW
SUBJECT LAW AND LITERATURE
NAME OF THE FACULTY
ARVIND NATH TIRPATHI
M.KRISHNA KOUSIKI
2ND SEMESTER, 2014065
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TABLE OF CONTENTS
1. INTRODUCTION
2. RELATIONSHIP BETWEEN POLITICIANS AND LAW
3. RAGHURAJ PRATAP SINGH
4. POLITICIANS INTERFERE WITH THE JUDICIAL SYSTEM
5. LAWMAKERS V. LAWBREAKERS
6. POLICE REFORMS
7. WAR BETWEEN PARLIAMENT AND JUDICIARY
8. CONCLUSION
9. BIBILOGRAPHY
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CERTIFICATE
TITLE OF SUBJECT: LEGAL WRITINGS
NAME OF FACULTY: ARVIND NATH TRIPATHI
I KRISHNA KOUSIKI hereby declares that this project case study:
POLITICIANS AND LAW. Submitted by me is an original work undertaken by
me. I have duly acknowledged all the sources from which the ideas and extracts
have been taken. The project is free from any plagiarism issue.
PLACE: Vishakhapatnam.
(Signature of the student)
Roll no: 2014065
Semester-2
Section-A
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INTRODUCTION1:
The subject is obviously much to complex to be dealt with in all possible aspects here; however,
some fundamental issues of theoretical and practical, importance are presented with special
emphasis. For example, there is an argument to be made that certain checks and balances
between law and politics are critical for the relatively peaceful and value-positive (constructive)
development of mankind and democratically organized societies. The relatively high level of the
autonomy of modern law is one of the most significant factors that define the limits of politics
and thus contributes to the constructive development of different societies.
RELATIONSHIP BETWEEN POLITICIANS AND LAW
Law and politics as social phenomena are two emanations of the same entity (a monistic
ontological conception), regarding which their separate existence is only a consequence of a
human dualistic or pluralistic perception of the world (a dualistic ontological conception).
Furthermore, the difference between law and politics is, from a deeper ontological perspective, in
fact only illusory, for reason of which also in the fields of legal and political theory and
philosophy there are conclusions regarding the partial or complete overlapping of law and
politics, sometimes even the equating of the two that raises a crucial question of how both
notions are defined. Regardless of such findings, the distinction (i.e. consciously persisting in a
distinction) between law and politics at the current level of human development is necessary and
Indispensable. With politics, it is necessary to distinguish three fundamental dimensions: the
institutional dimension, the normative dimension, and the process-related dimension. The
institutional dimension is expressed by the term polity and entails the operation of various
regulated state and non-state institutions like political parties, social movements, public media,
the legislature, and the government. The normative dimension is expressed by the term policy
and entails the creation of normative ideas or ideals that define basic societal values and
objectives geared towards a practical realization of such. Lastly, the process-related dimension is
expressed by the term politics, which is expressed in the formation of the political will through
the implementation of the social power and authority and built up through conflict and
1 http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1018&context=facpubs, 11/2/2015, 3:10pm
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consensus. The relation2 between politics and law has both a progressive function and a
safeguarding function. Law and politics, separately or together, both encourage and suppress the
development of societal relations, while they both also function to bring about justice and order.
The essence of their "separate and connected" but not integral existence is to help set each other's
borders. These borders prevent excessive one-sidedness in politics or the law, similar to a
"checks and balances" mechanism. In actuality, all legal institutes are a partial reflection of
individual or collective political decisions at a certain time and in a certain environment, which
have assumed a legal form and nature. This is true in systems where the main rule-framer is an
extremely politically legitimized body (e.g. the parliament as legislature) and also in systems
where judicial-precedent law has a strong influence because even the most autonomous judiciary
is always determined by some sort of political influence. Legal institutes, however, have a
reverse influence on politics in that they limit and direct politics as part of a wider legal
awareness or specific legal ideology.
RAGHURAJ PRATAP SINGH
In my project taking Raghuraj pratap singh popularly known as Raja Bhaiya as an example. An
independent M.L.A. hails from royal Bhadri (estate) of Oudh, presently representing fifth term
as Member of Legislative Assembly from his native assembly constituency Kunda, Uttar
Pradesh. He is cabinet minister of Uttar Pradesh in ministry of Minister of Food and Civil
Supplies in Akhilesh government. On 15 March 2012, he was assigned the ministry of Food and
Civil Supplies as well as the Prison ministry in the newly elected Akhilesh Yadav government.
On 4 March 2013, Raghuraj resigned as minister from Akhilesh's cabinet when his name was
surfaced in conspiracy murder of Deputy Superintendent Officer Zia Ul Haq in Kunda. In
the Indian general election, 1999, he put up Akshay Pratap Singh against the incumbent Ratna
Singh (als from a related family). It is in this election that Raghuraj started using strong arm and
criminal intimidation tactics. In the years 1997, 1999 and 2000, he was made minister in the BJP
governments of Kalyan Singh, Ram Prakash Gupta and Rajnath Singh respectively. For the 2004
elections, he changed his stand and began supporting Samajwadi Party which made him minister
in the 2004 Mulayam Singh Yadav government and the 2012Akhilesh Yadav government. In
March 2013, he had to resign from the Akhilesh Yadav cabinet after he was booked for the
2 http://www.fas.harvard.edu/~histecon/exel/objective.html, 11/2/2015, 3:10pm
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murder of Deputy Superintendent of Police Zia-ul-Haque. Later he joined politics and became a
cabinet minister in the newly elected SP government led by Mulayam Singh Yadav's
son Akhilesh Yadav. He was assigned the Food and Civil Supplies ministry as well as prison
department.
In 2002, on an FIR filed by a dissident Bharatiya Janata Party (BJP) MLA Puran Singh
Bundela of alleged kidnapping and threatening with dire consequences, got Raghuraj arrested on
the orders of then Chief Minister Mayawati at the early hours about 4:00 a.m. of 2 November
2002. Later Mayawati-led government in Uttar Pradesh declared him a terrorist, and he was sent
to jail under Prevention of Terrorism Act (POTA), along with his father Uday Pratap Singh and
Cousin Akshay Pratap Singh. Subsequently, Akshay managed to get bail, but Raghuraj's pleas
were rejected many times. Within 25 minutes of the Mulayam Singh Yadav's government
coming to power in 2003, all POTA charges against him were dropped. However, the Supreme
Court debarred the state government from dismissing POTA charges. Eventually the POTA act
was repealed in 2004, and although the court again refused to release Raghuraj3, he subsequently
became a powerful man in the government, and was accused by police officer R.S. Pandey (who
led the raid on his house) of having launched a vendetta against him. Eventually R.S. Pandey
was killed in a road accident, which is currently being investigated by the CBI. In 2005, he
became the minister for Food and Civil Supplies, and despite his pending criminal cases, he
came to be assigned the highest level of security (Z-category) provided by the state, though the
threats against him were not specified.
On 3 March 2013, Deputy Superintendent of Police (DSP) Zia Ul Haq was killed during clashes
between villagers and police in Kunda, Raghuraj Pratap Singh alias Raja Bhaiyya's constituency.
Following a complaint by the slain officer's wife, Parveen Azad, Pratapgarh police have
registered a case against Raja Bhaiyya for his alleged involvement in the "conspiracy" which
resulted in the gang war and subsequent murder of the police officer. In the FIR, Parveen has
said her husband was killed by the henchmen of Raja Bhaiyya. She has named Gulshan Yadav,
chairman of Kunda Nagar Panchayat, Harion Srivastava, a representative of Raja Bhaiyya and
Guddu Singh, Raja Bhaiyya's driver as prime accused. She has also named two other villagers –
Kamta Prasad Pal and Rajesh Kumar Pal. The police have registered a murder case against other
accused who were named in the FIR. Further this case was handed over to elite investigation
3 http://en.wikipedia.org/wiki/Raghuraj_Pratap_Singh , 10/3/2015, 8:31pm.
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agency CBI on dated-07.2.2013 for further investigation. The CBI has registered four different
cases in the murder of senior police officer Zia-ul-Haq and two others who were shot dead on
Saturday in the constituency of former Uttar Pradesh minister, Raja Bhaiya. The politician will
be investigated for criminal conspiracy. He was forced to resign from office after he was accused
in a police case of criminal conspiracy. On 1 August 2013, the CBI filed the final report in the
CBI court giving a clean chit to Raja Bhaiya. On opposition by the DSP Zia-ul-Haque's widow
Parveen Azad the special CBI Magistrate Lucknow ordered for furthur enquiery mentioning that
the Raghuraj Pratap Singh and others are nominated in FIR lodged by the slain DSP's widow, so
CBI are required to collect the evidences against Raghuraj Pratap Singh4 and others.
POLITICIANS INTERFERE WITH THE JUDICIAL SYSTEM
By above paragraphs we can easily say about Indian politicians who are miss using the law and
taking the judicial power into their own hands and using it for their own purpose. Raghuraj was
first arrested by the Mayawati government under POTA act in 2002 and Mulayam Singh Yadav's
government coming into power in 2003 within 25 minutes they released him and also dismissing
POTA charges against him. Supreme Court also questioned the government of U.P on this topic.
But the politicians who are in power cover it up by using their power. There are so many
examples to show that how politicians are miss using the law and taking the judicial powers to
their hands. This how corruption is increasing in India day by day and not only corruption but
also injustice is happening to all citizens. In a democratic country like India where “All are equal
before the law” sentence is remained only to paper not to the present system. India is a country
where all can get justice and it is only limited for thinking only not for actions done in the
society. The person who has power is destroying everyone who is against him by miss using the
power given to him by the people. Actually politicians are the one “of the people, by the people,
for the people”, but by seeing the present system we can say that politicians are “off the people,
buy the people, far the people”. Now-a-days in India money is given more priority than justice.
Corruption is the biggest problem in India. Corruption is done by the people who are in power.
For example, if any allegations came against any politician and the bench given to him were
strict and he easily manages to transfer them or transfer his case to another bench. Finally, we
4 http://en.wikipedia.org/wiki/Raghuraj_Pratap_Singh , 10/3/2015, 8:35pm.
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can say that politicians are interfering with the judicial system in order to complete their personal
work. If any son of a politician committed crime, he can easily escapes from the sentence by
creating fake evidence’s or destroying original evidence’s by using their power.
LAWMAKERS V. LAWBREAKERS
The criminalisation of politics has reached menacing proportions. Parliament and the State
Assemblies have a healthy number of members with serious criminal charges against them. The
trend must end. There are standards, both ethical and legal, laid down for most professions
including medicine and law5. Even for an entry into Government service, police verification is
necessary and the applicant’s past record is checked before he (or she) is appointed. Similarly,
before judges are appointed, their reputations are examined with a fine tooth-comb. Any doubt
can mean that the person under inquiry is not fit to be trusted even with the simplest of jobs.
When the Constitution was being written, our founding fathers had possibly not imagined that
there will be a time when the lawbreakers would become lawmakers and govern India. Indeed,
after independence, local marauders have replaced foreigners in stripping India of its wealth.
Earlier, criminals supported otherwise legitimate political candidates for elections. Now, they
themselves have jumped into the fray of electoral politics. A number of them have made it to
Parliament and State Assemblies. This is because the most important criterion for political
parties when they select their candidates is the latter’s ‘ability to win’, not their ethics or morals.
Consequently, our State Legislatures, for instance, have been captured by criminals. An analysis
of affidavits filed by 4,807 sitting MPs and MLAs, carried out by the Association for Democratic
Reforms and the National Election Watch, reveals that 688 (14 per cent) of the total number of
analyzed legislators have serious criminal cases against them. Clearly, when it is a question of
power and self-preservation, all political parties band together. Last month, political parties
closed their ranks after the Supreme Court ruled that legislators in jail will not be allowed to
contest elections. Political leaders, almost in one voice, demanded that the situation be rectified
by Parliament. In other words, Parliament should pass a law to nullify the judgment, which
would of course be open to review by the Supreme Court. But on its part, the Government also
expressed concern over the “erosion of supremacy” that Parliament enjoys. Good governance
and the socio-economic development of the country cannot happen unless there is a fair and
honest administration. Moreover, since the Constitution guarantees equality, why should a law
5 http://carnegieendowment.org/2014/07/02/lawmakers-and-law-breakers , 10/3/15, 10.14pm.
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be made to bring about disparity between persons contributing to the parties and others? Such a
law will be ultra vires to the Constitution6. There is no such a thing as a free lunch. Naturally, a
person with cases pending in the court, who has since become a legislator, will demand his
pound of flesh from the party in power — not only by throwing around his weight but also in
being bailed out in criminal activities. Fortunately, we have constitutional courts which
safeguard the interest of the common man. Instead of finding fault with the judgments of the
Supreme Court, political parties should come together and thank the jurists for trying to cleanse
politics. Heavens are unlikely to fall if a few criminals are shown the door by political parties,
and in their place, men of probity are selected. Any time is the right time to do what is right.
POLICE REFORMS
Draft bills to reform the police system are pending in many states. But while most of them
include independence from political interference and more autonomy, they almost all leave out
the crucial reform that must make the police accountable to the people. The power of the State is
often institutionalized through legitimacy-building mechanisms such as elections, as well as
through the coercive arms of the State. The most obvious form of coercive power of the State is
expressed through the police. The very term ‘police’ implies ‘order’ and ‘power’, through the
maintenance of ‘law and order’ and security. As the coercive arm of the State, the police are
expected to ensure security and the rule of law for all citizens. The police impact the social,
economic and political situation in a country in many ways and play a significant role in the
process of governance.
In a diverse, multi-religious, multi-ethnic country like India, the process of policing has huge
implications for the integrity and security of the country and the people. Though policing in a
democratic country is expected to be an enabling public service to ensure security, freedom and
human rights of all people, the very sight of the police evokes fear, terror or cynicism in
citizens of this country. This is primarily because the police are still a force used to control the
people by instilling fear and sometimes terror. The use of abusive language, torture and violence
6 http://www.outlookindia.com/article/Law-Makers-Or-Breakers/201907 , 10/3/15, 10.15pm.
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are perceived as part of ‘normal’ police7 conduct. Despite India gaining independence in 1947,
the character and nature of the elite Indian bureaucracy and the police are still influenced by the
ghosts of colonial power -- the power to control, oppress and regulate, rather than the enabling
characteristics of public service. In spite of the importance of the police in maintaining law
and order and the rule of law, there is hardly any adequate public debate or discussion on the
role of the police in democratic governance. In fact, the criminal justice system as a whole is
little discussed and debated in various studies and research on governance. There have been
relatively few empirical studies on the Indian police. Except for the reports of the National
Police Commissions of 1904 and 1978, and the reports of various state police commissions,
there is hardly any comprehensive or detailed independent analysis or research on policing in
India. Serving or retired police officers have written books, but there is little, if any, critical
evaluation or monitoring of the performance and practice of the Indian police. The major
government source of information still remains the annual [I] Crime in India[/I] report which
provides statistical information and official data about various crimes and police resources.
Most discussions and debates on policing take place among the policy elites or retired police
officers and there has been hardly any public scrutiny or systematic citizen monitoring of
policing in India.
The few ongoing discussions and debates on police reform need to expand to include debates
on the relevance, implications and impact of the police. However, the agenda and advocacy
for police reforms is yet to catch the attention of the public and the media. While civil society
organisations such as the Commonwealth Human Rights Initiative (CHRI), the People’s Union
for Civil Liberties and some other human rights groups have played an important role in
advocating for police reforms, the primary proponents of police reforms are retired police
officers. These important initiatives need to be appreciated and supported. However, they have
not spurred wider political and public debate on the role and character of policing in India. For
example, there is hardly any public debate about the much-needed administrative reform of the
police force and of the criminal justice system in India.
7 http://www.rediff.com/news/slide-show/slide-show-1-citizens-must-fight-political-class-for-police-reforms/20130206.htm,23/3/2015, 7:00PM.
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Despite India being an independent country with its own Constitution8, its criminal justice
system is still driven by its colonial legacy. The administrative and police systems first
developed by the East India Company and then institutionalized by the imperial power were
primarily extractive and repressive in nature. So the Police Act of 1861, enacted to strengthen
the repressive authority of the police in the aftermath of the first war of Indian Independence
in 1857, still remains the cornerstone of Indian policing in the 21st century – after 63 years of
freedom! The Act of 1861 was accompanied by a whole range of new laws that still define our
criminal justice system in India. The Indian Penal Code of 1860, the Criminal Procedure Code
of 1862, the Evidence Act of 1872 and the Criminal Tribes Act of 1868 form the defining base
of our criminal justice system. Though a Police Commission was appointed by Lord Curzon in
1902-03, the British did not make significant changes in the police system as recommended by
the commission. In fact, the very first report of the National Police Commission in 1904 pointed
out that “the police force is far from efficient; it is defective in training and organisation; it is
inadequately supervised; and it is generally regarded as corrupt and oppressive.” A hundred
years later, nothing much has changed.
The character and purpose of policing in a democratic polity and society will be substantially
different from that of a police force designed to control and oppress people under a colonial
dispensation. It is indeed a matter of deep concern that it took more than 60 years of
independence and more than 30 years of active campaigning by citizens of this country to
influence the government to go beyond the spirit and substance of the British Colonial Police
Act of 1861. The major challenges to the character of Indian democracy and the rule of law
have emerged from the lack of accountability of the police and the misuse of police forces by
vested interests within the government and political system. During the Emergency regime,
from 1975 to 1977, police raj was the most evident form of the coercive arm of the State. The
entire police machinery was misused by vested interests to control and oppress any voice of
dissent. Shocking examples of police torture came to light after the fall of the Emergency
regime. It is in this context that the National Police Commission was appointed by the newly
8 http://infochangeindia.org/governance/worldview/just-democratic-accountable-what-police-reform-should-be-all-about.html, 23/3/2015, 7:00PM.
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elected government9 in 1977. However, over the years its reports have been put in the deep
freeze and the agenda of police reform has been brushed under the carpet by various
governments.
The four dark chapters in the history of Indian democracy the Emergency in1975-77, violence
against the Sikh community in 1984, willful destruction and demolition of the Babri Masjid in
1991 and the Gujarat pogrom against the Muslim community in 2002 -- exposed the biases and
lack of accountability of the police. In fact, minority communities and poor people have been at
the receiving end of an ineffective and indifferent police force. When thousands of innocent
people were killed right in front of an indifferent and ineffective police force in Delhi or
Ahmedabad, the very integrity and impartiality of the Indian police was questioned, leaving
deep scars on the character and content of the Indian democratic system. More recently, the
attacks against Christians in Orissa clearly show how the police can still be part of a repressive
power relationship; the most virulent attack and advocacy against the minority community
came from a retired senior police officer in Orissa. This indifference, inefficiency, bias and
repressive character of the Indian police undermine the sprit and content of the Indian
Constitution and the very future of Indian democracy. In spite of the eight reports submitted by
the National Police Commission (1977-82), and in spite of numerous state commissions, the
recommendations by the National Human Rights Commission, and the recent Model Police
Act 2006 developed by the government-appointed committee headed by Soli Sorabjee, it seems
the political establishment is reluctant to initiate or pass the much-needed police reforms in
various states and union territories. Now the Supreme Court of India – responding to the petition
filed by Prakash Singh, a former director-general of police and others – has very clearly
prescribed clear measures for police reform.
The seven directives by the Supreme Court in 2006 provide the practical mechanisms for
police reform. As a study by CHRI indicated, the directives incorporated recommendations
from many of the commissions and committees on police reform that have sat in India over the
last 25 years.
The Supreme Court directed the state and central governments to:
9 http://www.satyamevjayate.in/Police/actnow-on-police.aspx, 23/3/2015, 8:00PM.
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Constitute10 a state and national Security Commission to
(i) ensure that the state government does not exercise unwarranted influence or
pressure on the police,
(ii) Lay down broad policy guidelines,
(iii) Evaluate the performance of the state police
Ensure that the Director General of Police is appointed through a merit-based, transparent
process and enjoys a minimum tenure of two years.
Ensure that other police officers on operational duties (including Superintendents of
Police in-charge of a district and Station House Officers in-charge of a police station)
also have a minimum tenure of two years
Set up a Police Establishment Board, which will decide all transfers, postings,
promotions and other service-related matters of police officers of and below the rank
of Deputy Superintendent of Police and make recommendations on postings and transfers
of officers above the rank of Deputy Superintendent of Police
Set up a National Security Commission at the union level to prepare a panel for selection
and placement of chiefs of the Central Police Organisations (CPO), who should also be
given a minimum tenure of two years
Set up independent Police Complaints Authorities at the state and district levels to look
into public complaints against police officers in cases of serious misconduct, including
custodial death, grievous hurt or rape in police custody
Separate the ‘investigation’ and ‘law and order’ functions of the police.
10 http://www.humanrightsinitiative.org/index.php?option=com_content&id=199%3Asupreme-court-directives-on-police-reform&Itemid=98, 23/3/2015, 8:00PM.
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It is in the context of the Supreme Court directive and in the spirit of democratic policing that
the government should envision and enact a new Police Act to ensure that policing is a public
enabling service to guarantee freedom, human rights and security to all people. Following the
directive of the Supreme Court, many state governments have introduced an ordinance for police
reforms and many of them have also developed a draft bill for enacting a new Police Act (as
policing is a state subject). However, while the draft documents of the various Police Acts stress
the autonomy and authority of the police, most of them do not have any clear and tangible
provisions for public accountability or for the citizen’s right to effective and accountable
policing. In fact, while many retired or serving police11 officers advocate the need for relative
autonomy from political interference, and seek more authority for the police, there is less
enthusiasm to advocate for strong provisions to protect human rights and create mechanisms to
make the police accountable to the public.
It is interesting to note that advocacy for police reforms stems from different assumptions, and
for different reasons. Many of those in the forefront of calling for police reforms are former
police officers and many of them strongly feel that political interference in appointments and
transfers and the misuse of the power of the police are at the core of the problem. Then there
are those civil society advocacy groups which see police reforms through the lens of
governance, that is, accountability, responsiveness, efficiency and quality of service.
The third advocacy perspective is based on a human rights approach to policing. Such an
approach would stress that the police is essentially a coercive force used by those in power.
And given the fact that the police and army have almost a monopoly over coercive power, they
are bound to abuse power and violate human rights. Hence, the police must be necessarily
accountable in terms of respecting and protecting human rights and should be monitored by an
independent public process. Citizens need to regularly evaluate the performance of the police
through independent and credible civil society initiatives.
While these three approaches to police reforms are not mutually exclusive, the human rights-
based approach cannot be compromised. Whether we call it a ‘police service’, a ‘police force’
11 http://infochangeindia.org/governance/worldview/just-democratic-accountable-what-police-reform-should-be-all-about.html, 23/3/2015, 7:30PM.
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or a ‘police authority’, by its very nature it is the coercive arm of the State and this necessarily
means the use of ‘power over’ and ‘control of’ people. Hence, there is an urgent need for
citizens and independent civil society formations to monitor and watch the act of policing.
A reading of most of the draft bills shows that though there is some rhetoric and minimalist
provisions for accountability, there are very strong provisions for more ‘authority’. While
most police officers advocate ‘functional autonomy’ (from political interferences) and seek
more ‘authority’, there is hardly any corollary provision for public accountability. More
autonomy and authority without more accountability can actually be counterproductive to the
very purpose of the police reforms.
“Police12 laws are put in place to regulate policing. The rationale for any police legislation is
to regulate policing; to provide the police with a new vision of itself; to change the underlying
assumptions on which it functions; articulate the relationships that the police establishment will
have with the political executive, the civil administration and the public; define its role and
function; delimit its powers and activities and define its structure. The Police Act should not go
beyond this remit to give extraordinary powers to the police or create obligations for the
public. Large portions...are in the nature of an emergency law (like the Disturbed Areas Act),
and encroach on areas of administration that fall outside the purview of a Police Act.
Emergencies of public order and the problems of insurgency or militancy require a coordinated
and integrated approach that goes beyond the policing requirements and includes action by
various other wings.”
WAR BETWEEN PARLIAMENT AND JUDICIARY
12 http://www.dnaindia.com/analysis/standpoint-why-states-do-not-want-police-reform-1879268, 23/3/2015, 9:00PM.
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On August 15, 1947, after ruling the subcontinent for over 200 years, the British surrendered
power and India became a free country. India adopted the path of parliamentary democracy. The
British parliamentary13 system left a lasting impress on it; due to the colonial legacy the framers
of the Indian Constitution borrowed this system primarily from England. The freedom of the
judiciary was taken from the USA. The USA did impart considerable power to the judiciary and
made the judiciary free of the biased influence of the executive and the legislature. So the USA
set an example of the freedom of judiciary before the whole world.
It is pertinent to point out that the Supreme Court of the USA is the earliest in the modern
democratic world. The USA is one of the countries to have adopted the ‘principle of separation
of powers’. There is a clear and distinct line that separates the three major organs—the
executive, the legislature and the judiciary. As a result the USA had had a glorious past of 200
years of peace, progress and harmony. Its chief reason is that the powers of the three organs of
the government are obviously written in the Constitution.
To keep the Constitution supreme in the country, India made the biggest written Constitution in
the world. Jennings also describes it as “the largest written Constitution in the world”. So the
Constitution of India gave powers to the three pillars of the government—the executive, the
legislature and the judiciary. The Founding Fathers of our Constitution gave importance to
justice at the highest pedestal than the other principles in the Preamble of our Constitution. The
Preamble clearly demonstrates the precedence of social and economic justice over political
justice because the people go to the judiciary in quest of justice. The Constitution lays down the
structure and defines the limits and demarcates the role and functions of every organ of the state,
including the judiciary, and establishes the norms for their inter-relationship, checks and
balances. Independence of the judiciary is essential for upholding the rule of law. So checks and
balances with separation of powers is one of the most characteristic features of our Constitution.
It is to be noticed that the powers of the three pillars must be balanced and none of these should
be in excess of the others.
Since the legislature represents the people, controls the government and makes law, no one can
interfere with its freedom and authority to do so. The judiciary has to adjudicate disputes,
13 http://shodhganga.inflibnet.ac.in/handle/10603/11379, 23/3/2015, 9:00PM.
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interpret the Constitution, “declare the law” and pass the necessary order “for doing complete
justice”. The Supreme Court is the final authority for interpreting and pronouncing on the
provisions of a law. Any law which is violative of constitutional provisions is invalidated. The
power of judicial review has always been there with the Supreme Court and cannot be taken
away. The executive operates and enforces the law made by the legislature. However, a number
of occasions have come in the parliamentary history of our country when there is a tug of war
between the legislature and the judiciary14. In fact the tug of war between the executive
government and courts has occurred ever since the courts have been established. In 1608 in the
case of Bonham Lord Coke systemized the judicial review of the laws made by Parliament in
Britain that if any law which is against the Constitution or impossible to enforce, the judiciary
will invalidate such law.
After almost two centuries in 1803 Marshall, the Chief Justice of the American Supreme Court,
systemized in the same way referring to the case Marbury versus Madison. The government
objected to it raising the query as to how the unelected judges could invalidate those laws made
by the elected members of Parliament while there is no provision for this in the Constitution of
the USA. In the world the legislature is mostly troubled by the fact that the unelected judges
interfere with the functions of other organs of the government in the name of interpretion. US
President Jefferson pointed out: “Judicial activism makes a thing of wax in the hands of judiciary
which it can give the shape as it wishes.” According to Lord Saimond, “Judicial activism abducts
directly the legislative functions in the name of interpretation.”
In India, the courts started invalidating the agriculture and land reform acts after independence in
the name of violation of the fundamental right to property; on this there was conflict between the
government and the judiciary. Consequently, the First Amendment was made in 1951, by which
the Ninth Schedule was added and a provision was made that the laws given in this Schedule will
not be subject to judicial review. In the context of the Ninth Schedule of the Indian Constitution,
Prime Minister Jawaharlal Nehru said: “It is not with any great satisfaction or pleasure that we
have produced this long Schedule. We do not wish to add to it for two reasons. One is that the
Schedule consists of a particular type of legislation generally speaking, and another type should
14 http://archive.indianexpress.com/news/constitution-not-parliament-is-supreme/571610/, 23/3/2015, 9:30PM.
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not come in. Secondly, every single measure included in this Schedule was carefully considered
by our President and certified by him” But, instead of repealing the Ninth Schedule the powers
were included in this Schedule for their political use.
In the Golaknath case the Supreme15 Court gave the judgment that Chapter 3 of the Indian
Constitution dealing with the fundamental rights of Indian citizens cannot be amended. The
judgment in this case was considered to be a case of judicial over-activism to some extent.
Creating a stir in Indian politics, the Supreme Court gave its historic judgment on the
Keshavananda Bharati case in 1973; In this case the Supreme Court held that Parliament cannot
change the Basic Structure of the Constitution. The judgment was criticised saying that the
judiciary had crossed its limits. When the 39th Amendment was carried out in the Constitution
making the provision that the election of the Prime Minister cannot be defied in the Court, the
Supreme Court invalidated it by declaring it violative of the Basic Structure of the Constitution.
In this way, in 1985 there was again a tug of war between the government and judiciary
regarding the Anti-Defection Act. The Chairmen of Assemblies were given the power to decide
the issue of defection of political parties. After the decisions of the Chairmen of Assemblies like
those of Mizoram, Goa, Nagaland, Manipur and UP on the issue, these were challenged in the
courts. As a result many kinds of disputes cropped up.
Thus it is obvious that the conflict between the judiciary and Parliament about the constant
enhancement of their respective powers has grown with the passage of time. On April 8, 2007
Prime Minister Manmohan Singh told the Chief Ministers and Chief Justices of the High Courts
in the conference on Administration of Justice on Fast Track Issue: “The dividing line between
judicial activism and judicial overreach is a thin one a takeover of the functions of another organ
may, at times, become a case of over-reach.” But the Chief Justice of India, K.G. Balakrishnan,
declared that tension between the judiciary on the one hand and the legislature and the executive
on the other was “natural and to some extent desirable”.
Such comments considerably accentuated the dispute over judicial activism. The comment of
Prime Minister Manmohan Singh was viewed in the context of introduction of various pieces of
15 http://indiatoday.intoday.in/story/supreme-court-vs-parliament/1/156562.html, 23/3/2015, 9:30PM.
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legislation nullified by the Supreme Court last year. The ban on several pieces of legislation in
the Ninth Schedule, the constitutional16 invalidation in relation to 27 per cent reservation of the
OBC quota in government aided educational institutions, the Muslims in UP being declared non-
minority by the Allahabad High Court, the expulsion of 12 MPs from Parliament being declared
valid by the Supreme Court etc. are also to be included in this backdrop.
It is clear that the Prime Minister expressed his political views rising above party politics and
Balakrishnan said how invalid and irresponsible criticism can prove to be harmful. The views of
both should be discussed cautiously.
The privileges of Parliament are often mentioned in any discussion. It is said that the privileges
of the Indian Parliament are not similar to those of the British Parliament according to the Indian
Constitution. The British Parliament has expelled its several members and even today, if it likes,
it can do so but the question is not of privileges, it is a question of aptness or obligation because
the democratic form of system has been adopted in India.
The opinion of the people is supreme in a democracy. The people are sovereign and their power
cannot be reduced but the people themselves do not use this power. They use it through their
elected representatives. If the people themselves use their sovereign power, lawlessness will
spread in the country. Thus the sovereignty of the people has been changed into the sovereignty
of Parliament. But the Supreme Court is not such a body as can dishonour Parliament or consider
Parliament to be of no consequence. The Supreme Court analyzed the laws terminated by
Parliament on the judicial basis. As Edmund Burke also said, “The fire-alarm at midnight may
disturb your sleep, but it keeps you from being burned at night.”
In the same way, the Supreme Court cooperates in the activities of the other organs of the state to
ensure the control and balance available in a developing democracy.
It can be said that the unelected judges availing so many powers and refusing to heed the
intentions of the elected representatives is undemocratic. But it is also true that the division of
powers among the organs of government is the fundamental feature in the Constitution of India
and this should be maintained. Because the Constitution does not give unfettered power to any
16 http://india.gov.in/my-government/indian-parliament, 23/3/2015, 9:45PM.
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organ. Just as parliament is supreme in Britain, similarly the Constitution is made sovereign in
our country. Therefore, just as the judiciary has supreme rights in its sphere in the same way the
legislature is also supreme in its sphere under the Articles 122 and 212. So the supremacy of the
Supreme Court ends where the supremacy of Parliament starts.
In the parliamentary history of India17 it has happened several times that when the legislature or
the executive failed in its constitutional duties, then the judiciary had to interfere to safeguard the
provisions of our Constitution and in public interest. As corruption is rampant among top
bureaucrats and political leaders, the increased expectation of common man from the judiciary
can easily be understood. However, it must also be realized that unless different organs of the
Constitution cross the limits of each other, there is no possibility of a real tug of war between
them.
CONCLUSION
The main political theories assume the ethical and hence political primacy of humanity – at least
on this planet – and accordingly proceed to define what they consider the most appropriate
institutions for human survival, development, morality and happiness. Environmentalism differs
from this approach but all the political theories sketched out in this article are governed by and
are dependent on ethical theories of human nature as it relates to the world and to others.
Because political theory predominantly deals with human social nature, it must also deal with
human individuality as well as our relationships to groups – with one's sense of self as a political
and ethical entity as well as one's need and sense to belong to overarching identities. The major
theories provoke in turn a vast range of discussion and debate on the subtleties of such issues as
the law, economy, freedom, gender, nationality, violence, war, rebellion and sacrifice, as well as
on the grander visions of our proper political realm (utopianism) and the criticism of present
institutions from the local to the international level. The present mainstream debate between
communitarianism and liberalism certainly offers the student a fertile ground for examining the
nuances generated in the clash between collectivism and individualism, but alternative as well as
historical political18 theories ought not to be ignored: they too still provoke and attract debate.
17 http://india.gov.in/my-government/indian-parliament, 23/3/2015, 10:00PM.18 http://plato.stanford.edu/entries/law-ideology/, 24/3/2015, 3:30PM.
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BIBILOGRAPHY
Fisher, W.W. et al., 1933, American Legal Realism, New York: Oxford University Press.
Halpin, Andrew, 2006, ‘Ideology and Law,’ Journal of Political Ideologies, 11: 153–168.
Hirst, Paul, 1975, On Law and Ideology. London: MacMillan.
Kennedy, D., 1976, ‘Form and Substance in Private Law Adjudication,’ Harvard Law Review,
89 (8): 1685–1778.
Aguilar-Moreno (2006), Avalos (1994), Carter (1964), Kellogg (1995), Smith (2003), and Seus
(1969).
CREW: Citizens for Responsibilty and Ethics in Washington.
Nolo's Legal Dictionary.
Journal of the Supreme Court.
West law.
Law & Policy Institutions Guide.
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