Monday, July 25, 2011

Supreme Court is not all that supreme- Judicial Activism Vs Judicial Overreach

In a recent blog titled ‘Indian Constitution- Supremacy of Basic Features”, I discussed about the supremacy of certain Basic Features of Indian Constitution.  These Basic Features have been held to be supreme, so much so that even  Parliament cannot amend the Constitution if such amendment results in altering any of the Basic Features.

A reading of various pronouncements of the Supreme Court of India will tell us that the following are the Basic Features of Indian Constitution:

1.            Supremacy of Constitution
2.            Republican and Democratic form of government
3.            Secular character
4.            Separation of Powers
5.            Judicial review
6.            Independence of Judiciary
7.            Harmony between Fundamental rights and Directive principles
8.            Limited power of Parliament to amend the Constitution

I am concerned here about the 1st and 4th items of the above list, i.e., ‘Supremacy of Constitution’ and ‘Separation of Powers’.  It is a well accepted principle of governance that ‘Power corrupts and absolute power corrupts absolutely’.  Founding fathers of Indian Constitution were aware of the risk of concentration of power in individuals or institutions and therefore created the fine balancing of various constitutional agencies through the principle of separation of powers and supremacy of Constitution.

Under the Constitution, various powers are delegated to various agencies by the people of India.  It provides for an independent legislature for law making; an independent executive for implementation and an independent judiciary for judicial review- all subject to the provisions of the Constitution.  There is also a separation of law making powers between States and Union.  Each of these organs is subjected to constitutional checks and balances (the least being on the judiciary) so that nobody crosses the proverbial line and assumes more powers than what is delegated to it by the Constitution.

Under the provisions relating to judicial review, the Constitution grants wide powers to the judiciary so as to ensure effective review of legislative and executive functions of other arms of the State.  It also makes judiciary fairly independent of other arms to ensure their review powers are not curtailed through subjecting them to any indirect control. 

Is the powers of judicial review entrusted in Supreme Court, being the apex court of India, unlimited?  Answer is obviously negative.  Supreme Court is equally constrained by the provisions and basic Features of the Constitution.  Before, examining this further, let me state couple of Articles in the Constitution that make the powers of Supreme Court seem unlimited:

Article 141: Law declared by Supreme Court to be binding on all courts:  The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

These Articles, no doubt, confers very wide powers upon the Supreme Court.  However, exercise of these powers is subject to the existing laws and the Constitution itself.  Even Supreme Court cannot step beyond the limits assigned by Constitution.  While Article 141 is limited to declaration of law (as in interpretation of an already existing law) the powers under Article 142 (1) is restricted to passing of decree or orders for doing complete justice in any cause or matter.   It is not the intention of these Articles to make the Supreme Court a supreme body, lording over all other organs of State or to make it a supreme law maker, who can overrule the legislative powers of Parliament/ legislative assemblies.

By land large Supreme Court has adhered to this principle and respected the Basic Feature of separation of powers under the Constitution.  Many a time the Apex Court refused to declare any laws in virgin territories, stating that the law making is the function of legislature.  It even refused to issue directions to the legislature to pass laws.   On the other hands, Supreme Court has effectively utilised these powers to interpret the provisions of law in many cases so as to increase the effect of constitutional protections to the citizens.  Commonly known as judicial activism, these interpretations by the Supreme Court, especially with respect to Article 14 and 21 of Fundamental Rights have brought in lot of positive changes in our legal framework, in the past.

However, it is often said that the character of a person is tested only in the bad times and not in ideal conditions.  Some recent developments relating to corruption in the Executive has caught the attention of the Nation and its people.  These developments have put the Executive and to some extent even Legislature on the back foot.  There is a credibility crisis in the Government.  Decision making is almost in a limbo, with no bureaucrat willing to risk his neck by taking decisions that could potentially be called into question in future.

These weaknesses in the other two arms of the State and the relative faith in the Judiciary (despite some nasty allegations being raised in the recent past against judiciary itself) is apparently making the Supreme Court more and more powerful.  Any adverse comment, even verbal comments in the course of hearings, against Government is lapped upon and celebrated by the Media and the anti-corruption crusaders.   Even the political class, with their short –term narrow views, are willing to look the other way when judiciary is trying to assert itself over the weakened Executive.

We are seeing a recent tendency in the Supreme Court to take things in its own hands, if it is not satisfied about any of the actions of the Executive.  No doubt, in cases like infamous 2G scam investigation it may seem the right thing to do.  Even in the case of an order by which a Bench of the Supreme Court appointed a retired colleague to head the Special Investigation Team (SIT) that it constituted to trace the alleged black money stashed in overseas banks, the order was received with lot of appreciation.  These actions, often amounting to usurpation of powers/functions of Executive is, in the opinion of many experts, Judicial overreach than judicial activism.

I think the jubilation among sections of people and media is understandable, given the lack of trust in our political class and the lack of credibility of the present Government in fighting corruption.  However, it would not be prudent on our part to overlook the long-term effect of such judicial overreach, merely because it suits our purpose for the time being. 

Prevention of black-money and its recovery is obviously a function of executive.  Governments have indeed been lax in these accepts in the past and it was almost accepted as a part of life to have certain portion of GDP to be unaccounted.  It was in the spirit of judicial review to have sought explanation from the Executive on the lack of progress in its efforts.  Government on its part had also appointed a very high powered Committee to monitor and coordinate its actions against the menace of black money, although when knuckled by the Supreme Court.   Yet, for the Supreme Court to have gone ahead and constituted the SIT with a retired Judge as its Head was, in my opinion, a clear overstepping beyond Constitutional scheme of things.

Consider this. Tomorrow, you or I may approach Supreme Court stating that the anti- Naxal operations are not effective and needs to be tightened up.  What if the Bench hearing the case agrees with this view and appoint a retired Judge to head the anti-Naxal operations in the Country? Or for that matter, appoint another retired Judge to head our Municipal Committee, since the Court is not happy about the way municipal administration is being run?  If the Court is not happy about the law and order situation in a State, can it be appointing a retired judge to oversee the police administration of the State, keeping out the political leadership? 

If we extend the logic of appointing SIT or overseeing investigations further, the above scenarios are clearly possible.  We already have committees appointed by High Courts administering even ‘Devaswom Boards’ (the Body that administers Hindu temples in Kerala) and entrance examinations.  

Such actions that clearly trespass into executive or legislative functions could still be justified on the basis of Article 142.  However, the Supreme Court being the guardians of the Constitution must be conscious about the supremacy of the Constitution and must exercise self-restraint while exercising its powers derived from the Constitution.  Supreme Court cannot and should not close its eyes to violation of the Basic Feature of ‘Separation of Powers’ by its own actions. Usurping the powers or functions of other arms by judiciary will not be in the long-term interests of Indian Constitution.  It is the judiciary that needs to ensure the harmonious co-existence of all the arms of the State.

Supreme Court should avoid the temptation to play for the gallery, even if that brings much acclaim.  It will do a lot of good to keep in mind these words of its own Chief Justice; “The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values, our own likes and dislikes on the society”.   These words were about speeches given out by Judges; but the principle is equally or even more applicable to the orders and decrees passed under Articles 142, as well. The importance of this message only increases when it comes to verbal statements that honorable judges make during the hearing of the arguments in a trial.

Supreme Court must not assume itself to be supreme; it must subordinate itself to the supremacy of Indian Constitution and its Basic Features while exercising the powers. 

1 comment:

  1. There is a difference between 'obiter dicta' (casual observations of judges in the decision) and 'ratio decidenti' (the decision per-se. We need to rely only on the latter and not on the former!
    Good article. Keep blogging!