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A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament. The case importantly pertains to the judiciary’s interpretation of existing law concerning itself. The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws. This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same. In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments. In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges. It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament. This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India. The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself. Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution. Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant. In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions. The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”. An indication of the Supreme Court's attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture. The CJI unambiguously stated that: "...In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance..."
The Election Commission has announced the schedule for the election of the President of India. The last date for nominations is June 30, elections will be held on July 19, and counting will take place on July 22. The BJD and AIADMK have proposed the name of Mr. P.A. Sangma. The Samajwadi Party and Trinamool Congress have suggested three names. Other parties or alliances have not announced any contenders. Our calculations show that no single party or alliance has the numbers to unilaterally elect candidates of its choice. A candidate will need 5,48,507 votes to be elected as the President. If the UPA were to vote as a consolidated block, its vote tally would reach 4,49,847 (41% of the total votes). Among the Congress allies, Trinamool holds the largest number of votes (47,898). If Trinamool decides to support some other candidate, the UPA tally will fall to 4,01,949 votes (37% of the total). The votes held by the major alliances are given in the table below:
Coalition | Value of votes | Percentage of total votes |
UPA |
4,49,847 |
41.0% |
NDA |
3,03,912 |
27.7% |
Left |
52,282 |
4.8% |
Bahujan Samaj Party |
43,723 |
4.0% |
Samajwadi Party |
68,943 |
6.3% |
Biju Janata Dal |
30,215 |
2.8% |
AIADMK |
36,216 |
3.3% |
Others |
1,11,874 |
10.2% |
Total |
10,97,012 |
|
Minimum required to be elected |
5,48,507 |
|
A detailed break-up of votes held by each party is given in the table below:
Party | Value of votes | Percentage of total votes |
Indian National Congress |
3,31,855 |
30.30% |
Bharatiya Janata Party |
2,32,454 |
21.20% |
Samajwadi Party |
68,943 |
6.30% |
All India Trinamool Congress |
47,898 |
4.40% |
Bahujan Samaj Party |
43,723 |
4.00% |
Janata Dal (United) |
41,574 |
3.80% |
All India Anna Dravida Munnetra Kazhagam (AIADMK) |
36,216 |
3.30% |
Communist Party of India (Marxist) |
35,734 |
3.30% |
Biju Janata Dal |
30,215 |
2.80% |
Nationalist Congress Party |
24,058 |
2.20% |
Independent |
23,830 |
2.20% |
Dravida Munnetra Kazhagam (DMK) |
21,780 |
2.00% |
Telugu Desam Party |
21,256 |
1.90% |
Shiv Sena |
18,320 |
1.70% |
Shiromani Akali Dal |
11,564 |
1.10% |
Communist Party of India |
9,758 |
0.90% |
Rashtriya Janata Dal |
8,816 |
0.80% |
Others |
7,420 |
0.70% |
Janata Dal (Secular) |
6,138 |
0.60% |
Jammu and Kashmir National Conference |
5,556 |
0.50% |
Rashtriya Lok Dal |
5,412 |
0.50% |
Desiya Murpokku Dravida Kazhaga (DMDK) |
5,104 |
0.50% |
Jharkhand Mukti Morcha |
4,584 |
0.40% |
Muslim League Kerala State Committee |
4,456 |
0.40% |
Indian National Lok Dal |
4,068 |
0.40% |
All India Forward Bloc |
3,961 |
0.40% |
Jharkhand Vikas Morcha |
3,352 |
0.30% |
Asom Gana Parishad |
3,284 |
0.30% |
Telangana Rashtra Samiti |
3,044 |
0.30% |
Revolutionary Socialist Party |
2,829 |
0.30% |
Bodoland People's Front |
2,808 |
0.30% |
All India United Democratic Front |
2,796 |
0.30% |
Praja Rajyam Party |
2,664 |
0.20% |
Maharashtra Navnirman Sena |
2,275 |
0.20% |
Kerala Congress (M) |
2,076 |
0.20% |
All India Majlis-e-Ittehadul Muslimeen |
1,744 |
0.20% |
Nagaland People's Front |
1,722 |
0.20% |
Sikkim Democratic Front |
1,640 |
0.10% |
Peoples Democratic Party |
1,512 |
0.10% |
Bahujan Vikas Aaghadi |
1,058 |
0.10% |
Lok Janasakti Party |
957 |
0.10% |
All Jharkhand Students Union |
880 |
0.10% |
Haryana Janhit Congress |
820 |
0.10% |
Mizo National Front |
732 |
0.10% |
Marumalarchi Dravida Munnetra Kazhagam |
708 |
0.10% |
Swabhimani Paksha |
708 |
0.10% |
Viduthalai Chiruthaigal Katchi |
708 |
0.10% |
YSR Congress Party |
708 |
0.10% |
Peasants and Workers Party |
700 |
0.10% |
Pattali Makkal Katchi |
528 |
0.00% |
Manithaneya Makkal Katch |
352 |
0.00% |
Puthiya Tamilaga |
352 |
0.00% |
All India NR Congress |
240 |
0.00% |
J&K National Panthers Party |
216 |
0.00% |
Communist Party of India (Marxist-Leninist) |
176 |
0.00% |
United Democratic Party |
153 |
0.00% |
Lok Satta Party |
148 |
0.00% |
Loktantrik Samajwadi Party |
129 |
0.00% |
J&K Democratic Party Nationalist |
72 |
0.00% |
People's Democratic Front |
72 |
0.00% |
Uttarakhand Kranti Dal |
64 |
0.00% |
Maharashtrawadi Gomantak Party |
60 |
0.00% |
People's Party of Arunachal |
32 |
0.00% |
Total |
10,97,012 |
|
Notes: The electoral college for the Presidential election consists of the elected members of Lok Sabha, Rajya Sabha and all Legislative Assemblies. The winning candidate must secure at least 50% of the total value of votes polled. Each MP/ MLA’s vote has a pre-determined value based on the population they represent. For instance, an MP’s vote has a value of 708, an MLA from UP has a vote value of 208 and an MLA from Sikkim has a vote value of 7 (Note that all MPs, irrespective of the constituency or State they represent, have equal vote value). Parties in various coalitions: UPA: Congress, Trinamool, DMK, NCP,Rashtriya Lok Dal, J&K National Conference, Muslim League Kerala State Committee, Kerala Congress (M), All India Majlis-e-Ittehadul Muslimeen, Sikkim Democratic Front, Praja Rajyam Party, Viduthalai Chiruthaigal Katchi NDA: BJP, JD(U), Shiv Sena, Shiromani Akali Dal, Janata Party Left: CPI(M), CPI, Revolutionary Socialist Party, All India Forward Bloc