Since the topic of today s debate is a little, let s say, intellectually rigorous, I will attempt to bring some levity

into in by relating it to the Hindu creationist mythology. So originally, god had three aspects Brahma, the creator, Vishnu the preserver, and Shiva, the destroyer: And so was is system of governance derived from as far as the ancient romans : we have the legislature: the creator of laws, the executive: who enforce those laws, and finally the judiciary : who punish all aberrations of the very same law. The gods however, are not answerable to the people, but the government is: and so it is that at times there are um.. incompatibilities between the existing laws of the land, and the laws of the people s welfare. At such times, the judiciary might step in overreach as it were- to correct them.

And I stand before you today, trying to show : how Shiva the destroyer, is ALSO the god of rebirth- how the overreach of the judiciary in no way threatens the separation of power.

One basic and fundamental question that confronts every democracy, run by a rule of law is, what is the role or function of a judge. Is it the function of a judge merely to declare law as it exists-or to make law? And this question is very important, for on it depends the scope of judicial activism. The traditional view is that the law is existing and pre-eminent, and the role of the judge is only to find it. The same traditionalists also seem to think that in some Aladdin's cave there is hidden a common law in its entire splendor and that on a judge's appointment there descends on him knowledge of the magic words. You will however, worthy opponents and judges, if I take a slightly pragmatic view of the matter. It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. Greater minds have tackled this problem,( and I would like to mention one specifically, a thinker 2000 years ago- Plato. Now the question posed by Plato was, is it better to be subject to better men, or better laws? The answer was thus like: laws are by definition general rules and generality falters before complexities of life. Laws' simplification and stiffness are at best a makeshift, far inferior to the discretion of the philosopher king whose pure wisdom will render real justice by giving each man his due ) I would like to make this clear to my esteemed judges and opponents, that the intrinsic feature of any democracy i.e. fundamental rights, are guarded by the Supreme Court. When dichotomy arises regarding this, as seen in the 1973 Golaknath case ( The supreme court clearly stated: judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. This signifies that IF the parliament for their own needs, try to

subvert, or distort any of the people s fundamental right, the supreme court is right there to be our defender. On another issue : regarding the controversial election 1977 of Indira Gandhi in ; the supreme court, analyzing the volatile situation judged that : sidelining her candidacy, and banning her from contesting the Lok Sabha for the next six years. he judiciary therefore, took what is now recognized as a historical decision is divesting our supreme executive of her unlawful powers : thereby harmonizing the tripartite system. Had the judiciary not been given this necessary power, Indira Gandhi ( replace freely with Robspeirre or Hitler or any of the umpteen Indian Governments then) would have silenced any dissenting voices, which is an inextricable power for the proper functioning of democracy. The Golaknath Case, on the other hand signifys how legislative or parliamentary power may not subvert the rights of man. Further In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. [Shah Bano: A woman asking for justice was denied that justice by a majority government. So who, I ask, are the custodians of our constitution, the law makers, their so called followers, or the executers of our constitutional rights. Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978 and was subsequently denied alimony. ] I m sure by now my worthy opponents have talked about a million examples of the recent cases of judicial activism. The ones about the court cancelling licenses for the 2g spectrum and The SpInvestiTeam court ordered to look into our economic dirty linen (That s the first thing you get when you google judge and overreach) I d like to however mention one ruling of the apex court that fills me with hope for the nation : the court said it would ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights but is bound to perform duties. The judiciary : by its very nature, is a corrective organization : it is powerless to do anything unless there is actually something, that needs doing. And having this overreaching power to correct legislature, only provides it with barely enough to actually maintain the separation of power, let alone disturb it. The state of India has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious roles to play, like that of a protector, arbiter, controller, provider. Complete separation of power is impracticable we must only hope for one system that strives for balance without absolute corrupting power. So the ancients were right. By the end, they had realized that all three were aspects of the same god. Its probably time we realized the same.

The founding fathers had enough insight to see that the powers were divided into three parts, the legislature elected BY the people, the executive derived from the legislature, and the judiciary meant to supervise the two bodies. Now, one can imagine that the judiciary MAY take an authoritarian view in overpowering both the legislature and the executive. BUT it is this separation of power, which keeps the judiciary independent from the tentacles of political influence. During the 1990 s the Indian intelligentsia was sharply divided into two camps: one that Still adhered to a form of secularism and the other that admired the concept of Hindu nationalism. My worthy opponent can cite the multitudinal controversies such a babri masjid, but according to the Supreme court verdict in 1995 : hindutva are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the People of India depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith" (Emphasis supplied). This clearly means that, by itself, the word "Hinduism" or "Hindutva" indicates the culture of the people of India as a whole, irrespective of whether they are Hindus, Muslims, Christians, Jews etc. This historical verdict validated that there can be an alternative ideology in the Indian political spectrum to provide another ideology to the prevalent Nehruvian Secularism. Having said that, one cannot say that the judiciary became a safe bastion for the right wing policy-makers, for the honored judges know, that the Supreme Court also called for a tribunal for all those accused in the Babri Masjid demolition. Had not the judiciary been provided with this overreaching power, would it be possible to keep this tribunal or case intact when the hindu nationalist BJP was in power. (ATAL validated this, showing that some law-makers retain some faith in the separation of power.)