Equality is a fine balance

The constitutionally assigned role of Parliament and the legislatures is to enact laws and that of the executive is to implement the laws. One salient fact must be remembered. The powers of Parliament and legislatures under our Constitution are not absolute. They are subject to certain limitations, one of which is legislative competence. Another important limitation is the fetter of fundamental rights. Our Constitution expressly provides that any law which contravenes any fundamental right is void. Again, action of the executive must be within constitutional and statutory limits. It is axiomatic that the limits of power and their transgression cannot be determined by the limited power itself. Therefore it is for the judiciary to determine and enforce constitutional limitations. This aspect was extensively debated in the Constituent Assembly. Ultimately it was accepted that the question whether a law or executive action violates any fundamental right was to be decided by the judiciary which was its legitimate function.

The judiciary invalidates a statute if it is clearly in conflict with the Constitution. Our courts have not been trigger happy in striking down laws. Laws are not invalidated because the court disapproves of the policy underlying the legislation or its wisdom. Statistics and research would establish that in a vast majority of cases legislation, especially socio-economic legislation, has been upheld. Undoubtedly there have been at times judicial aberrations. This cannot be avoided because infallibility has not been divinely guaranteed to the judges. Surely that cannot be a reason for clipping the wings of the judiciary.

Suppose a law is enacted by an overwhelming majority that persons belonging to certain castes or community are ineligible to hold certain constitutional offices. Can the court shirk its duty of striking it down as discriminatory?