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Supreme corrective body? by TR Andhyarujina
Delivering the Setalvad Memorial Lecture, on April 16, Chief Justice of India S.H. Kapadia cautioned the judiciary against exceeding their judicial functions. His remarks are particularly relevant to the increasing tendency of judges of superior courts to issue directions to government, to correct and monitor government’s functions, and to even make policy decisions which are in the domain of government — as if there was no separation of functions between the judiciary and the executive in our Constitution.

The Chief Justice said: “We do not have the competence to make policy choices and run the administration. Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of the judiciary, whose members are not chosen by any democratic process, and whose members are not answerable to the electorate or to the legislature or to the executive... Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the Constitution.”

In 1955, the Supreme Court, in a judgment said: “The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated, and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.” The only exception to this separation of powers is when the Constitution clearly mandates judicial interference with the other branches of government — as when it holds that a law is beyond the competence of legislatures, or a law or government action or policy clearly violates the fundamental rights of citizens.

Judicial supervision of government actions and at times government policies in disregard of separation of functions caused a generally reticent Prime Minister Manmohan Singh to complain recently. On February 6, at the Commonwealth Law Conference at Hyderabad, he said: “While the power of the judicial review must be used to enforce accountability, it must never be used to erode the legitimate role assigned to the other branches of the government.” On another occasion the PM, in a candid interview regarding the Supreme Court’s orders in complex policies of distribution of foodgrains said: “I respectfully submit that the Supreme Court should not go into the realm of policy formulation.”

A distorted notion of public interest litigation has resulted in this kind of overreaching. PILs, as originally conceived in 1979 by the Supreme Court, were for to protect the rights of those who had no means of access to the courts to protect them. For example, the court issued orders to prevent the exploitation of labourers on construction sites and the release of bonded labourers. The SC was on firm ground to intervene in such matters, as it had a clear mandate to protect the fundamental rights of individuals. Overall the meaning and content of human rights and personal liberty was enlarged by such orders, and the SC’s activism in such cases was lauded in India and abroad.

PILs now, however, are mostly to correct government actions or omissions unrelated to protection of the fundamental rights of citizens. The court has made orders for cleanliness in housing colonies; disposal of garbage; control of traffic; control of unmanned railway crossings; control and prevention of the menace of monkeys in cities; control of breeding of animals in zoos; measures to prevent ragging in colleges; and protecting women from sexual harassment in workplaces. The court has entertained petitions in a highly technical engineering scheme for interlinking India’s rivers, and for the control of genetically modified foods.

Recent judgments of the court by two-judge benches have criticised the political and economic policies of today’s government, which in their opinion have contributed to the action or inaction of government, to be corrected by the court. In such cases the views expressed by two judges of the court are considered to be the opinion of the SC as an institution. This is because the Supreme Court of India does not decide cases by the full court of judges unlike the supreme courts of the USA, Canada, Australia or the UK. The assumed jurisdiction in all such cases is some tenuous connection with the fundamental right to equality or right of protection of life and personal liberty.

In 1984, Justice Pathak cautioned the court about entertaining such matters: “In the process of correcting executive error or removing legislative omission the court can so easily find itself involved in policymaking of a quality, and to a degree, characteristic of political authority, and indeed run the risk of being mistaken for one. An excessively political role-identification with political governance betrays the court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our Constitutional system between its three basic institutions.” In 2007, Justice M. Katju in a judgment expressed the same reservations on judicial overreach.

The Supreme Court is not diminished in its stature by self-restraint and recognising its limits under the Constitution. Regrettably, given the pressure of work from such PILs and other minor cases on its working, the Supreme Court’s historic and essential role of laying down the constitutional and national law of the country in important matters is being sidelined — as if the court is only meant to be a supreme corrective body for administration in the country.

There is another aspect of the courts’ activism which has direct implications for responsible self-government. Inasmuch as courts are indiscriminately made substitutes for responsible government, their continual intervention deflects the primary responsibility of the people, the legislature and the executive for self-government and self-correction.

Justice Jackson of the US Supreme Court pertinently 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 a 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.”

No one today grudges a vigorous judicial activism from our courts but its legitimacy and accountability depends on it being exercised within the confines of the power conferred by the Constitution on the judiciary.

Andhyarujina, a former solicitor general of India, is the author of ‘Judicial Activism and Constitutional Democracy in India’