Sunday, March 07, 2010

A serious setback to federalism

While writing an article on the Supreme Court's latest judgment on CBI,(Question of Domain) I realised that my previous post on this was perhaps an understatement. I had the opportunity to discuss with Anupam Gupta, who had written an excellent article (Profile of Federalism in Practice: Role of Judiciary) in the book, Principles, Power and Politics edited by D.D.Khanna and Gert W Kueck, (Macmillan, 1999). According to him, this judgment betrays a serious misunderstanding of our Constitution. The judgment also smacks of certain poverty of ideas, and ignorance of Constitutional scheme. First, Article 21 does not have a non-obstante clause. Therefore, how can this Article transcend all other provisions? Second, how can a limitation in the Constitution not apply to a judiciary? Everything in the Constitution is binding on all parts of the Constitution. The issue before the Bench was not a Constitutional amendment or the validity of a legislation. Therefore, bringing in the basic structure doctrine, to make Article 21 prevail over a Constitutional limitation giving effect to federalism simply makes no sense. Third, Judiciary owes its authority to the Constitution. Can the Supreme Court arrogate to itself a super Constitutional authority? It is conceptually awful to reduce the entire Constitutional scheme to Articles 21, 32 and 226 in the guise of judicial review. The sincerity and honesty behind the judgment are not being questioned, but the Bench could have found other remedies to achieve the same result.This judgment is sure to find its place, if one were to prepare a list of 10 worst judgments of the Supreme Court since the beginning.
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