Judicial review a remedy to prevent abuse of special powers: Justice Surya Kant

The extent of delegation of powers under special statutes to deal with terrorism, etc., can be a cause of concern as it creates a situation rife for arbitrary exercise of powers which can endanger individual liberty and human rights, but judicial review provides the remedy to prevent any abuse when harsh measures become necessary to deal with extraordinary situations, Supreme Court judge Justice Surya Kant said on Saturday.

“The remedy undoubtedly lies in the overwhelming and extraordinary power of judicial review vested in every jurisdictional judicial system,” the Supreme Court judge said at the launch of the book ‘The Law of Emergency Powers’, authored by Senior Advocate AM Singhvi and Prof Khagesh Gautam.

Justice Surya Kant said the world today is a fundamentally different place than what it was many decades ago and pointed out that no democratic nation has invoked such emergency powers in the 21st century. This, he said, is because conquest and colonisation is no longer affordable. Focus of governments, he said, has shifted to democratic unrest and terrorism.

Justice N V Ramana recalled that some members of the Constituent Assembly had observed that emergency provisions are a necessary evil aimed at resolving crises identified under the Constitution. Unveiling the book at a virtual event, he said the volume rekindled his memories of the emergency.

Justice Ramana, who is also the second most senior judge of the court, said that emergencies leave a long-lasting effect on generations. In his own case, a year of academic studies and mental suffering can be attributed to the 1975 Emergency, he pointed out.

However, he said that he has no regrets and that he saw many young people sacrificing their lives for defending human rights. The experience of the time underlined the importance of understanding the concept of emergency, he said.

Justice D Y Chandrachud said that the book comes at the most opportune time as just last year saw the executive in many countries adopting exceptional powers to tackle the Covid -19 pandemic.

He said that his transformative years as a student were deeply impacted by the Emergency that lasted 21 months and that on account of the fact that his father late Justice Y V Chandrachud was in the SC then, he gained personal insight into the tribulations of a judge grappling with the situation.

History, said Justice Chandrachud, has several instances of civil liberties being collateral damage of national emergency and referred to the Jabalpur ADM’s decision to uphold suspension of fundamental rights during Emergency.

Stating that real law is developed in district courts and High Courts, Justice Chandrachud reminisced that it was the High Courts, including the judgment of MP High Court that stood out in ADM Jabalpur case – the HC had said that the suspension of fundamental rights can be challenged – as also the the judges who had to face transfer due to their judgments during Emergency.

SC judge Justice S K Kaul said the judicial error in the ADM Jabalpur case was corrected by the judgment in the Aadhaar case which laid down that certain rights were merely recognised by the Constitution and not conferred by it.

Singhvi flagged the lacunae in the country’s legal education system and underlined the glaring absence of genuine legal research. He rued the lack of quality control and said the negative impact of stratification of law colleges ought to be addressed urgently.

While central universities run their law faculties as law schools, state universities mostly act as affiliating universities, he said, adding that this affiliation system has institutionalised mediocrity, diluted academic standards and is one of the biggest problems plaguing the country’s legal education.

The Madras High Court, he said, had once said that a majority of the existing law colleges must be shut if the sanctity of the legal profession has to be maintained.

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