Nehru’s fear of SC becoming third chamber of Parliament coming true: A-G

New Delhi, Dec. 8, 2018: Amid raging controversy over use of ‘constitutional morality’ as a touchstone to test validity of laws made by the Legislature, Attorney General KK Venugopal on Saturday said Jawaharlal Nehru’s fear of the Supreme Court becoming the test chamber of Parliament was coming true.

Delivering the keynote address at the Second JB Dadachanji Memorial Debate in the capital, Venugopal criticised the Supreme Court for using vague concepts such as basic structure and constitutional morality to judge validity of law and to expand its role beyond interpreter of the Constitution.

“Use of constitutional morality can be very very dangerous and we can’t be sure where it will lead us to. I hope constitutional morality dies soon. Otherwise, our first Prime Minister Pt. Nehru’s fear that the Supreme Court will become the third chamber (of Parliament) might come true,” Venugopal said.

The Attorney General’s comments come weeks after Law Minister Ravishankar Prasad on Constitution Day requested the judges to define constitutional morality if it was to be used as a touchstone to test validity of laws.

Supreme Court judge Madan B Lokur – who spoke before Venugopal-justified judicial activism, saying the citizens were bound to knock at the doors of the judiciary if Parliament failed to enact laws that were needed and the executive failed to act. “Judicial review is being used only in case of inaction of legislature and executive,” he said.

Venugopal specifically referred to the a five-judge Constitution Bench verdict allowing entry of women of all ages into the Lord Ayyappa Temple at Sabarimala in Kerala which has been vociferously opposed by the devotees. Courts should be very careful while interfering in religious beliefs, he added.

“For the court to believe that unless it interferes, the country is doomed is not correct,” the Attorney General said.

While speaking on his topic-‘Is Constitutional Morality a further tool in the armoury of the Supreme Court for expanding judicial review?’, the Attorney General said the conflict between the Legislature and the Judiciary has been there since the 1950s when the Supreme Court declared unconstitutional many of the laws and Parliament kept on attempting to find way to save such laws.

Talking about the famous in Keswanand Barati case (1973) wherein the Supreme Court by a majority of 7:6 propounded the concept of basic structure of Constitution, Venugopal said this was not the only attempt to expand the role of judiciary.

He pointed out how the top court has misused Article 142 of Constitution which deals with enforcement of decrees and orders and confers powers on it to pass orders where it is necessary for doing complete justice in any cause or matter pending before it.

The Attorney General said this exceptional provision meant for enforcement of decrees and orders was being misused by the Supreme Court to ‘enact’ laws. Describing Parliament as omnipotent, he said it’s difficult to limit its powers.

Referring to Preamble of the Constitution, Venugopal pointed out that ‘We the People’ of India have given it to ourselves. People have basic wisdom. If something extraordinary happens they will act, he said.

Constitution has to be interpreted literally. No limitations can be placed on powers of Parliament through some vague concepts such as basic structure and constitutional morality which were capable of being interpreted by different judges differently.

The article first appeared in The Tribune