Overreach is killing Activism
The widening rift between the government and judiciary over judicial appointments came out in the open when the then Chief Justice of India (CJI) TS Thakur made unusual comments on Prime Minister Narendra Modi’s Independence Day speech in 2016.
Addressing an Independence Day function organised by the Supreme Court Bar Association, the CJI said: “I was hoping he (Modi) will speak about issues plaguing the justice delivery system. However, he did not. I request the government to pay attention to our judiciary, especially appointment of judges.” The comments came barely three days after the CJI threatened to pass judicial orders if the government didn’t clear the logjam over judges’ appointments soon, the comments pointed to the rising gap between the two sides over the prickly issue.
Since then many judgments’ by the Supreme Court (SC) have been made in contrary to the position held by the present dispensation over various issue. If one takes the showdown on its face value, then it will appear that the showdown is over the selection of judges. But the real issue lies in the growing imbalance in separation of power. The government sees it as an instance of judicial overreach. Ever since the judiciary arrogated to itself all powers to appoint judges through a judicial coup in 1993, the executive – irrespective of ideology of the party in power – has been trying to ‘restore’ the balance.
Political leaders have openly criticized the collegium as an extra-constitutional system under which judges appoint judges under complete secrecy. That’s why Parliament unanimously passed the National Judicial Appointments Commission (NJAC) Act to create a six-member panel headed by CJI with two senior most SC judges, Law Minister and two eminent persons as its members to appoint judges.
But the SC declared the NJAC Act unconstitutional and revived an admittedly opaque collegium system. Even after another round of hearings on making the collegium transparent, the SC left it to the government to draft Memorandum of Procedure (MoP) resulting into the current logjam. Had the SC clearly laid down guidelines to make the collegium transparent, then the confrontation between the two pillars of Democracy could have been avoided.
While both judiciary and the government are fighting over the power to select judges, the cases in our various courts are continuously piling up. According to official figures, India’s 24 high courts have nearly four million cases pending before them while 478 out of 1,056 sanctioned posts remain vacant. Around 30 million cases await disposal in trial courts where 4,432 out of 20,502 sanctioned posts of judges were yet to be filled. The SC too has only 28 judges against the sanctioned strength of 31 judges to tackle around 60,000 cases.
The Indian judicial system is one of the largest in the world. But, according to a 2012 National Court Management Systems report, although the number of judges increased six-fold in the last three decades, the number of cases shot up 12-fold.
Even by conservative estimates, the number of cases reaching courts will touch 15 crore requiring at least 75,000 judges in the next three decades, the report said.
There are other factors also that contribute to the pile-up of cases. The infrastructure available for courts – particularly lower courts – is inadequate, besides serious shortage of judges. Many courts function from rented buildings, while nearly 7,000 proposals for building courthouses were still awaiting state governments’ clearance.
Despite the Law Commission, parliamentary standing committee and the Supreme Court saying that the judge-population ratio in India should have 50 judges per one million people, the ratio continues to be abysmally low at 13 judges per one million people.
In the 1990s the era of coalition politics and governments and the rampant corruption cases against the political parties and its leaders had made them too weak to overcome the attempts made by the judiary to overarch its powers. But with the BJP enjoying an absolute majority in the Lok Sabha, it’s only natural for the government to attempt to regain the lost ground for the executive and ‘restore’ the balance in separation of power envisaged under the Constitution.
The concept of “Overreach”
The Constitution of India sets out a separation of powers between institutions of the state—executive, legislature and judiciary—to ensure the checks and balances so essential in a political democracy. Any amendment in the Constitution, any decision about rights and obligations, or any passage of laws, is the exclusive domain of the legislature. All policies and administration which are based on the needs and priorities of the state, are the task and prerogative of the executive—except for some actions, such as imposing taxes or allocating expenditure, where approval of the legislature is specified in the Constitution. Protecting the fundamental rights of citizens, and ensuring that existing laws are followed by the government, for which the administration is accountable, is not only the obligation but the domain of the judiciary. Of the three, if any one institution of the state attempts to perform a function that essentially belongs to another institution of the state, under the Constitution, this can be described as overreach.
The recent Supreme Court ban on the sale of liquor is a clear example of judicial overreach for two reasons. Such policies are unambiguously in the domain of the executive. The decision imposes a fiscal burden on state governments, in the form of revenue foregone, which is at the expense of some priority expenditure. The adverse economic consequences for governments, tourism and employment are also causes for serious concern as they will affect the well-being of citizens.
There are several examples of such overreach. Cited by former Chief Justice J.S. Verma during a public lecture, also cited later by the Supreme Court: “Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies, stray cattle in streets, clearing public conveniences, levying congestion charges in peak hours at airports, under the threat to use contempt power to enforce compliance with its orders. Misuse of contempt power to force railway authorities to give reservation in a train is an extreme instance.”
Deepak Nayyar, an emeritus professor of economics, Jawaharlal Nehru University, New Delhi concludes at livemint.com that the judiciary has also gone far beyond its role of interpretation of the Constitution. He says “Article 124 reads: “Every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose, provided that in the case of an appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.” Three Supreme Court judgements have, in effect, rewritten Article 124. It now means, in practice, that every judge of the Supreme Court is appointed by the President solely on the basis of the recommendation initiated and accepted by a collegium consisting of the Chief Justice and four seniormost judges of the Supreme Court. The original provision left room for the exercise of preference, prejudice or nepotism by the government. The new practice, de facto, establishes this as a right of the judiciary with the same exercise of preference, prejudice or nepotism by the collegium. There is a clear need for checks and balances, with accountability, in this process.”
It cannot be gainsaid that in independent India, the Supreme Court is the institution that has protected and preserved the fundamental rights of citizens in a most diversified society. For this, much credit goes to it.. At the same time, it must be recognized that the Supreme Court has encroached on the jurisdictional space of the executive and the legislature, which has increased with the passage of time. Hence, judicial overreach has grown, particularly in terms of policymaking and judicial legislation.
Is this overreach consistent with Constitution’s Spirit?
AP Shah, former chief justice of Delhi high court and former law commission chairman, while speaking to Sanjiv Shankaran on the issue elaborated that in the 1980s, after the Emergency, judiciary transformed itself into an institution that was enjoined to promote the ideals of socio-economic and political justice.
“Judiciary developed public interest litigation, or PILs, as a jurisdiction to transform constitutional promises into reality, and open the doors to those groups of people who were not free to approach the courts due to socio-economic factors. The idea was to make human rights meaningful for weaker sections of society. Then it gradually recognised rights of undertrials, juveniles, right to privacy, right to speedy trials and so on. It also covered areas like environment. This is how the idea of PILs began and started expanding. Article 21 was expanded as well, recognising right to education, work, shelter and so on. It was undeniably a glorious chapter in history of Indian judiciary.”
Lately, he says that the court has taken on a role of co-governance and he fears that it has become the norm almost. The court, through its decisions, is virtually overriding the constitutional concept of separation of powers. There are judicial diktats on every other subject, many of which are rank populist decisions, for example, the decision in the BCCI matter, where the court is practically running the cricket board on a day to day basis. Besides this, the court also entertains completely frivolous matters like the national anthem case, or the one on Sikh jokes.
In sum, the court appears to be engaging in unrestrained judicial overreach, mostly by recourse to Article 142, and issuing judicial diktats.
Populist approach would destroy the idea of PIL as envisaged originally decades ago. SC is trying to govern the country, and trying to correct every ill that exists. But this is neither within the powers of the court, nor does it have the capacity to do so. The priority must be protection of human rights and fundamental rights.
The alcohol ban is a case in point where the court’s decision has had catastrophic financial consequences. In effect, the court drastically altered the central government’s policy without realising the implications. The financial burden can be anywhere in the range of anything between Rs 50,000-75,000 crore, and has led to the loss of a million jobs. SC has missed the target on this one. There should have been decisive steps taken against drunken driving. The decision may be well intentioned, but it has effectively gone against the thriving hospitality industry.
As a result, there is also a lot of uncertainty around policy, because of the interventions of SC. Such decisions have serious financial repercussions, which is beyond the imagination of the courts.
Also, there are very serious issues involved in the petition before SC, including whether the Aadhaar Act could have been passed as a money bill.
It is useful here to recap what happened. The case came before a three-judge bench in August 2015. The court granted interim relief restricting the use of Aadhaar to two schemes on a voluntary basis. When it went to a five-judge bench in October 2015, the two schemes were expanded to six schemes. On both occasions, the court said it was an important issue and should be heard expeditiously.
In spite of that observation, the matter is not being given priority. In the meantime, the central government started issuing notification upon notification making Aadhaar mandatory for various purposes, in disregard of the interim order. Surprisingly, the Chief Justice of India has made an observation that the non-mandatory nature of Aadhaar extends only to social welfare and benefit schemes, and that it did not apply to other things like verification of income tax returns or registration of mobile numbers. This is completely at odds with the interim order passed by the constitution bench.
Somewhere, priorities are getting lost, and the court is wasting its time in trying to address policy issues, which are clearly not in its domain. The Court it seems has forgotten the concept of the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsithe courts justification that all the other branches of the government has failed to fulfill their duty and that is why the courts have to perform thir duty is not worth it.On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: “ The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.”
By Nilabh Krishna