Bhargavi wrote a great piece yesterday on the tendency of legislatures to nullify judicial pronouncements by passing laws which overturn judgements/orders. She rightly pointed out this practice as a major issue which needs greater deliberation. There is however, one other issue which needs to be considered while thinking of possible solutions. This is the issue of balancing legislative supremacy with judicial intervention.
Legislative supremacy is probably the most important cornerstone of a democracy, and judicial intervention is the most important check on unbridled exercise of such supremacy. Constitutions in different countries balance the two through different mechanisms. Our constitution prohibits unbridled exercise of legislative power on issues affecting fundamental rights, and gives the judiciary the power to check the legislature from doing so. In essence however, the legislatures are democratically elected bodies, while the judiciary is unelected. While the legislature gains its legitimacy from the democratic process, the judiciary gets its legitimacy through the perceived correctness of its judgements. At any given point of time therefore, it is difficult to ascribe greater legitimacy to one institution over another, as there is no formulaic mechanism to judge the popular legitimacy of the judiciary and compare it with that of legislatures.
Legislatures retrospectively invalidate many rulings. Bhargavi points out some such laws which have nullified historically and constitutionally significant rulings. Some of these invalidations have apparently been made to protect the powers and privileges of politicians. However, many such laws (including the Vodafone incident, and numerous other retrospective laws on tax cases, especially in Punjab&Haryana) can also be said to reflect democratic preferences. In essence, in all such cases, the legislature seems to be saying that it feels that the judiciary has made an improper call in ruling the way it did. This may be easier to disprove objectively in some cases (where politicians clearly invalidate a correct judicial interpretation) than others (I for example, completely disagree with the assertion that political parties fall within the ambit of the RTI Act, read more here).
The important point is this: We should try and focus on mechanisms to make the legislative process more accountable and responsible. As long as we depend on the judiciary to intervene and correct “wrong” steps taken by legislatures, we are not putting sufficient pressure on the legislature to correct itself. I would argue that in the long run, incentivising legislatures to behave more responsibly is better than forcing them to make laws which make them more accountable. Doing so would in turn make the democratic process more virtuous and participatory. If lawmakers fail to consult citizens before passing laws, there should be sufficient public outrage which forces lawmakers to consult citizens.
The forum for reforming the democratic process should be direct engagement with the legislature. Using the judiciary as an instrument to dictate popular public policy goals does nothing to further the cause of popular democracy in the long run. It prevents popular engagement with substantive issues since the judiciary does not need to deliberate with, and convince the masses of the correctness of its decision.
Fighting it out with legislatures and politicians may be a tougher alternative, but it is definitely a more virtuous one.