How Judiciary misused Judicial restraint in controlling the parliament?

How Indians 'screwed up' the constitution of India? -A perception study on the 'Constitution of India'

When we read through the Indian Constitutional History of last about 70 years after the independence of 1947, we get  'new perceptions', when we see through our Constitutional amendments and 'landmark honorable supreme court judgments'.

In fact, it is not for Judiciary to look at economy and other factors when it is deciding on Constitution's prescriptions, several SC judgments always reiterate,

That it is not the 'business of the  judiciary', to look at various social modifications, if it does, it becomes another government machinery like the institution;

Why then we need Judiciary to interpret the Constitution while it is Custodian?

Is the question that pops up.

If Constitution considered the Judiciary has to be some adjunct to Government - Government works on 'limited idea of a few years, on the basis of its 'political policies', it runs the government;

But judiciary, on the other hand, has to look at 'long-term perspective of the Constitution'; if not 'Constitution would lose its shape; and 'one day -  you will ask':

'Was there any Constitution at all, in India ?'-

[You shall have to know, that Britain never had/has any 'Written Constitution' except Some Magna Carta, Bill of rights, Act of settlements, (in England) there Jurist Mr. Cranbury ideas of 'Prospective rulings' interpretation  can work;]

But in India, obviously, you have well  rounded written 'Written Constitution, obviously, the founding fathers wanted the Constitution of India ought to be a 'running document for some centuries'; else they would not have constituted a 'Constituent Assembly' to decide on:

What shall be the 'Constitution of India for Indians?

who (these Indians) were ruled about 150 years by 'regulations' of British India, that made the 'mindset' of Indians -some  'Regulations ' Oriented' people, (Obviously,  lost touch with Ancient 'Vaishali culture' since Muslim ruled, since 1191  when Md Gori invaded India at the request of King Jayachandra to teach a lesson to King Prithviraj Chauhan; who saw Princess Samyukta (daughter of Jayachandra eloped  by King Prithviraj - that is your history;

- Obviously, some six centuries 'you lost your independent way of life', is the driving force for the founding fathers-

(Indeed true,  when you look at your politicians today; after about 70 + years of independence, same that way some 'slave' Indians of today, today even now, even today.)

Therefore, British made too many Government of India Acts, as, some company' runs;

(India was ruled by East India Company' under a British Charter granted by Queen Elizabeth I in the 16th century - last of the Tudors Dynasty); 'Company works on 'Resolutions' and 'Regulations based on Resolution', self-imposed, by the Board of Directors'; like your Infosys, Wipro, TCS etc, of today; that way India was ruled till British Government took over -

Obviously the Britain or British Parliament till date ' never modified any clauses' of Magna carta, Bills of Rights, or Petition of Rights or Acts of Settlements -  one needs to know;

Background of Queen Elizabeth I

She was the second daughter, after Queen Mary (more known as Bloody Mary) (daughter of Catherine of Aragon) of the Henry the VIII of Tudor's -

(Obviously, he was some kind of dictatorial mindset man), that way he got annulled the Pope's ruling:

- 'King cannot 'annul his own marriage'  paradigm:

(like a prosecutor cannot be a judge in his own matter.)

So Pope is the right Ecclesiastical judge on Roman Catholic Kings); when he divorced  Queen Catherine of Aragon - daughter of King Ferdinand and Queen Isabella of Kingdom of Spain); 'Everyone knows, Henry the VII under 'Intercourses Magnus' doctrine, he maintained  business relations of Burgundy - Similarly, Henry VII tried, that his first son King Edward I's Queen Catherine of Aragon since became widow of King Edward  who died too early as a young man '; but the Kind Henry VII wanted to see 'the Widowed Queen Catherine of Aragon', by special Papal dispensation; that she could be married to King Henry  the VIII, with  King EdwarI's widowed Queen Queen Catherine of Aragon; that way Henry VII  saw Pope is not angry, that  the marriage is performed with his second Son - the Henry VIII; and thus King Henry VII preserved his Roman Catholic religion, then .' But Henry VIII, when Pope did not sanction Queen Catherine's marriage 'Annulment', with him, as he called that  she is being  his brother's widow he should not marry her;

Like if 'Devil quoting scriptures'; but when Cardinal Woolsey could not get him 'Pope's sanction of 'Annulment of marriage'

(Henry VIII, the desired Papal annulment, Henry VIII just treated Cardinal Woolsey of 'Treason' and got him executed at the Tower of London - Henry VIII when excommunicated by the Pope of Roman Catholic Church, King Henry VII , became some Anglican Church follower. - a radical change like any 'Dictator';.

And he married his courtier ' Anne Bolyne. and she became the Queen of Henry VIII ; and she bore Elizabeth I, as their daughter, who was equally cantankerous like her father Henry VIII. Also American Constitution is just some 18 pages constitution; while Indian constitution has basically had 365 Articles very detailed constitution; -what shall be what? 

Per se the stipulated 'Articles';

- Obviously, so 'Perspective overruling' is not rpt not, relevant for India one needs ought to know -

American law where jurists like George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Benjamin N. Cardozo had considered this doctrine to be an effective judicial prescription for the Americans. But to India, that 'principle ' obviously cannot be applied (obvious error in perception). -  'Prospective Overruling' in India on the Constitution of India, one has to appreciate.

When so read -

So that view of CJI Mr. K Subba Rao to allowing 17th constitutional amendment or other amendments cannot survive is right basically;

therefore *following 'Prospective Overruling' in India unsustainable,  is, obviously,  indeed questionable, that ought to have been considered in Kesavananda Bharati case by Hon'ble 13 judges bench,  is my view -

That way , seventeenth amendment be struck down - it is for the government repair the damages, not for the Hon custodian courts, for Hon custodian courts cannot work on some so called 'government policies' of the so called governments, is my another view;

*'We, therefore, declare that our decisions will 'not' (may be by error the word 'not' is used here if not that is to be  treated 'non est'),  affect the validity of the Constitution (Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights in �Golaknath case' by the bench headed by CJI .Mr. K Subba Rao.

I agree with the position, if (provided) that  'the Golaknath', struck down all constitutional amendments affecting the basic structure doctrine of  the Constitution:

I agree with Kesavanandha bharati decision of 13 judges bench:

'We (hon Court) further declare that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights' -

Chief Justice Koka Subba Rao had first invoked the doctrine of prospective overruling.  (I think may be by 'error of perception when read with the relevant constitutions of USA and the UK, Indian constitution is an amalgam of many modern Constitutions, with independent identity, so it is very detailed constitution unlike others cited above.,)

He had taken import from American law where jurists like George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Benjamin N. Cardozo had considered this doctrine to be an effective judicial tool. In the words of Canfield, the said expression means:

In the words of George F. Canfield, the said expression means:

"........ a court should recognize a duty to announce a new and better rule for future transactions whenever the court has reached the conviction ( 'whenever there is no guideline in the mother constitution' - that way is to be read is my view),...

that is an old rule (as established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place".

Taking cue from such formulation, Justice Subba Rao used this doctrine to preserve (may be by error he failed to use negative 'not to  preserve') the constitutional validity of the Constitution (Seventeenth Amendment) Act, legality of which had been challenged.

He drew protective cover offered by the doctrine over the 'impugned amendments',;

while manifestly holding that the impugned amendments abridged the scope of fundamental rights.

Justifying his stand, he held that:

What then is the effect of our conclusion on the instant case? Having regard to the history of the amendments, their impact on the social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that considerable judicial restraint is called for.

I do not agree with that 'Judicial restraint' concept adopted here; 

Even USSC questioned 'Judicial restraint' in several judgments, even questioned Mr. Stone J, Frankfurter J -

You ought to weigh the Constitutional proprieties, not government perceptions - see that way even today, that  even the honorable USAC 9th court questioned President Mr. Trump's 'Travel ban' - obviously it set aside the Travel ban, all of us see today.

Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762), or simply the Golaknath case, was a 1967 Indian Supreme Court case, in which the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.

 

Published in Constitutional Law
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