Thursday, December 8th, 2022 22:40:02

Has the judiciary crossed the boundary?

By Desh Ratan Nigam
Updated: May 25, 2021 8:25 am

The mandate of the Supreme Court and high courts as laid down in the Constitution is to interpret laws, duly enacted by the Parliament/state legislatures or any other body, and not to make laws or to implement them. In addition, the duties of the judiciary are to protect the fundamental/ legal rights of the citizens without ignoring the fundamental duties.

Under the mandate, the judiciary cannot govern or even seem to be governing the country as that is the express mandate of the executive/ elected government, accountable to the people, under the Constitution.

The general perception on the ground is that the judiciary has crossed the boundary laid down by the will of the people in the Constitution. The Supreme Court, therefore, is not above the law and whenever the judiciary crosses that boundary, through its orders, judgements or  oral observations in the court, then the same cannot be held to be constitutional. The cross section of the people clearly feel the judiciary is playing to the gallery and populism, which may be harming the constitutional judicial institution as a whole.

The judiciary cannot abrogate or even seem to be abrogating the functions of the other constitutional bodies. The nation clearly watched in bewilderment the proceedings in the Supreme Court and various high courts of the country during the ongoing pandemic when the unelected judiciary acted as the super government and clearly entered into the arena of direct governance. The system of accountability of the elected governments to the people was breached. The judiciary is an expert body in interpreting the laws and protecting the citizens’ rights and it’s not an expert in the field of public health and medicines.

The underlying point is that we are going through a pandemic which the present generation including the honourable judges have not seen, nor anyone has a practical reference point that has been witnessed. All over the world, this pandemic, caused by China’s Wuhan virus, has resulted in widespread and unprecedented loss of lives despite having the best infrastructure and the data. But India, despite so many unfortunate deaths, has done much better in terms of the fatality rate, recovery rate and deaths.

The second wave in India was sudden and the Chinese variant of the virus behaved unexpectedly, targeting the new age group. It was more deadly, and the patients needed prolonged stay in the hospital with more oxygen requirement. The governments within the available resources are trying to tackle the pandemic and at the same time augmenting those resources. The central government, based on the advice of experts and international guidelines, prepared and executed a dynamic plan.

Although every death is unfortunate, statistics clearly show that India had done comparatively better as compared to the developed world with low mortality rate and high recovery rate. The system was overwhelmed worldwide due to the inherent nature of the pandemic. Every ounce of health input was delivering many times the output of normal times including in India, despite this the health infrastructure held on and continuously improved.

Amidst all this, the judiciary forgot the constitutional mandate and unknowingly interfered with the governance of the country. The observations made in the court during the hearings were highly de-motivating for the executive and the same were lapped up by a certain vulturistic section of media, creating panic and negativity in the country. Should the judiciary not be held accountable for crossing this sacrosanct boundary for such a judicial trumpeting? There is nothing called judicial activism. The judiciary has to conduct as per the constitutional mandate.

A point to be noted is that during the pandemic, the central government is, in fact, doing most of the works of many state governments. The perception was thus created that the judiciary made the erring state governments go scot-free and the onus of tackling the pandemic appeared exclusively on the central government, despite health being the state subject.

The enforcement of disaster management act in no way takes away the duties, responsibilities and accountabilities of state governments. The illustrative example is that Mumbai with a similar load of COVID cases could tackle the pandemic with 1/3rd of oxygen supply, whereas Delhi was given three times more oxygen and still the state government could not manage. The entire edifice of the Delhi government’s argument in the court fell flat when the question of the oxygen audit was taken up.

One must remember that the central government has a plan for the pandemic and its dynamic nature, which has been drawn in consultation with experts and state governments, and this expertise has been lacked by the judiciary. The message that has gone to the people of this country is that the judiciary has become a super government, unelected and unaccountable to the people.

The central government responded actively in the Supreme Court, clearly pointing to the constitutional mandate of the division of powers. The central government responded in the context of the global pandemic, where the responses and strategies of the nation are completely prepared under the guidance of expert medical and scientific opinion. Hence, there is little room for judicial interference. Any overzealous, may be well-meaning, judicial intervention may lead to on foreseen and unintended consequences, in absence of any expert advice and administrative experience, leaving doctors, scientists, experts and the executive very little room to find innovative solutions.

The centre rightly withheld the details sought by the apex court in the view of the formation of the national task force. In fact, there was no need for a parallel task force by the Supreme Court, as there already exists a COVID taskforce by the central government. The task force by the Supreme Court and the national task force with overlapping functions is not good for governance. The interference by the judiciary in the vaccination and supply of medicines is a clear example of interference in governance and policy decisions. Should the judiciary be allowing itself such interference and should the Parliament be a mute spectator? The government needs, during such an unprecedented crisis, discretion to formulate a dynamic response as the  statewise and nationwide parameters keep changing.

The policy of the government is in the tune with international guidelines and is India specific, which is equitable, non-discriminatory and based on intelligible criteria and is in conformity of Articles 14 and 21 of the Constitution and such a policy has been arrived at through thorough consultation with all the stakeholders. Did the Supreme Court and high courts miss this unmissable simple process of policy formulation? The judiciary clearly laid the necessary expertise to address, even on a strategy level, the challenges posed by the pandemic. The oral observation of the judiciary has been lauded by certain sections of media in India and abroad, which has been called vulture journalism. Did the judiciary unknowingly and unconsciously promote vulture journalism?

The tough governments are known and remembered for their work, especially during the crisis, and they will have to face the people of this country in subsequent elections. The present crisis has also highlighted the functioning of the judiciary and the mode of the appointment of the judges at the highest levels of the judiciary?

The people still cannot understand the interpretation of consultation with the Chief Justice of India in the appointment of the judges in high courts and the Supreme Court being interpreted by the judiciary. The people of this country are closely evaluating the judiciary, which manifests itself as the will of the people and in a democracy everything is subordinate to the will of the people. The crossing of the boundary by the constitutional institutions should be taken as a threat to democracy and should be taken seriously. The constitutional provision to deal with boundary jumping, judicial trumpeting already exists and the need of the hour is to restore the original position of the Consultation by the executive in appointment of the judges, so that the constitutional mandate is followed in letter and spirit.



By Desh Ratan Nigam

(The writer is a lawyer and political analyst )

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