Soli Sorabjee in The Indian Express.
Judiciary and Parliament
August 28, 2005
The Supreme Court judgement dealing with minority educational institutions has evoked severe criticisms. What is amazing is the level of ignorance and constitutional illiteracy exhibited. One patent fallacy is that Parliament is supreme whereas it is the Constitution which is supreme. The task of determining whether Parliament has transgressed any fundamental right is entrusted to the judiciary. Parliament cannot be a judge in its own cause when the validity of its law is questioned. That indeed is the rationale of judicial review, which is an essential feature of the Constitution.
In adjudging constitutionality, the Court gives due deference to legislative wisdom and has evolved the doctrine of presumption of constitutionality. The Court does not strike down laws in a cavalier manner. A vast majority of laws, especially those dealing with socio-economic matters, have been upheld. However when a statute is clearly violative of a fundamental right, the Court as a judicial sentinel would be failing in its duty if it did not strike it down. It is perverse logic that when the Court upholds legislation, it is not overstepping its bounds but when it strikes down unconstitutional legislation, it is confronting Parliament and crosses the Lakshman Rekha.
What is forgotten is that the Constitution confers a fundamental right on the minorities of administering their educational institutions which includes the right of admission of students belonging to their community. In the case of an unaided educational institution where the entire expense of acquiring the land, putting up the building and the necessary infrastructure is incurred by the educational institution and no aid whatsoever is received, the Government surely cannot insist that students belonging to non-minorities and other communities should be admitted. The Supreme Court has upheld that stand. How is that opposed to social justice? A contrary view would indeed be an injustice to the minority institutions.
The Court is aware that even in such a case there has to be social control because education is not an economic commodity. Therefore the Court’s insistence that the process of admission must be transparent, fair and based on objective criteria of merit without any nepotism and there should be no profiteering, that is, charging excessive or exorbitant fees. There are committees to monitor whether minority educational institutions conform to these requirements. Ill-informed critics have overlooked the Court’s unequivocal ruling that if any educational institution does not conform to these requirements, the Government can supersede the institutions’ admission procedure and replace it with its own.
Repeated assertions that Parliament has the right to make laws is meaningless because Supreme Court has clearly stated in its earlier judgements, starting with T.M.A. Pai Foundation and ending with the present case, that the Government can make appropriate laws with regard to matters of quotas and reservations.
Our Supreme Court is one bright star in an otherwise dark firmament. It is admired throughout the world for its independence and solicitude for the fundamental rights of our people. Let us not by needless controversy tarnish or dilute that image.
I am not a prude and confess that in the past I have dipped into Playboy and flipped through Penthouse. However, I feel disgusted when pictures of scantily clad skinny women sticking fingers into their panties are thrust on our sight every morning by some national dailies. My objection is not on the ground of morality but vulgarity.
Can these pictures be banned? I am afraid not. Freedom of the Press can be restricted under our Constitution inter alia on the ground of obscenity. In 1985 our Supreme Court dealing with the novel Prajapati ruled that ”a vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals…”
When does vulgarity become obscenity? A difficult question because valiant judicial efforts have not yielded a satisfactory definition. However, the standards for banning any work as obscene according to Supreme Court ”must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.” Justice Krishna Iyer’s judicial admonition in 1980 has an abiding relevance. ”The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajuraos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.”
The remedy lies in mobilising public opinion and unceasingly protesting to the proprietors or editors of these national dailies to spare us this daily onslaught of vulgarity. Besides an appeal to their good sense and spiritual sentiments may hopefully overcome the temptation of greater profits by increased circulation. If that fails a dharna may yield results.