Attorney General protests against judicial overreach

Higher courts should go back to interpreting laws, not making them.

The Attorney General, K. K. Venugopal spoke for a lot of old-fashioned people with an innate faith in the original Constitutional scheme of things. The founding fathers must be noticing how the Supreme Court has gone far beyond its brief. “You have acquired vast powers to become the world’s most powerful court,” he told the apex court last week. “You have expanded the scope of Article 21…reading into it at least 30 new rights.”

Venugopal could not have been more forthright. A lot of people have been smarting under the ever-expanding overreach of the higher judiciary. Just as well that one of the more respected members of the Supreme Court Bar chose to bell the cat, as it were. The once widely welcome instrument of Public Interest Litigation has now acquired menacing proportions, with the courts deciding everything other than interpreting the law in the light of the Constitutional provisions.

The executive may have been a helpless party to this erosion in its Constitutiongiven powers due to its growing unpopularity with the people, but that cannot be, should not have been, the reason for the higher judiciary to step in and virtually usurp the role and functions of the elected representatives of the people. Indeed, it will be correct to say that the rise of a powerful and all-pervasive judiciary is co-terminus with the decline in public prestige of the politicians who man the executive.

It may be irrelevant that some who populate the higher echelons of the judiciary too seem to be cut from the same cloth from which all of us, including politicians, are cut. And here we are not referring to the sworn affidavit furnished by the father and son duo of Shanti and Prashant Bhushan about the integrity of at least ten former heads of the judiciary. Nor do we refer to the rather distasteful characterisation of the judges on prime time TV by a senior lawyer, who till recently was the head of the SC Bar

Also immaterial to the debate spurred by the timely intervention of the AG might be the oft-stated plaint about the decline in the quality of judgements.

Paradoxically, the decline in the timbre of dispensing justice has been accompanied by a steady accretion in judicial powers, mainly through the instrumentality of the now much-abused PIL. For instance, how the apex court could deem it fit to issue what to all others appeared a firman about the sale and consumption of liquor within a hundred metres—or was it 500 metres? —of state and national highways, still boggles the mind. Overnight, as the AG noted, tens of thousands of modestly-paid workers were staring at starvation.

Now, to turn around and justify the edict on some transport ministry circular about reducing road fatalities is to display disingenuousness. Why the feckless circular, if any, could not be nixed by the court defies common sense. Next, will the courts order shut all vehicular traffic, including public transport, in the capital since children are worst sufferers of environmental pollution in winter? The point: sitting in their cham- bers and deigning to run the country should cease. Their Lordships should try and stay connected to the real world.

Or take the latest case of judicial overreach. Instead of entertaining a plea by a few Muslim organisations and a couple of busybodies always keen to stay in the limelight, the apex court has sought to know from the Centre as to why the Rohingyas ought not to be allowed to settle here in the country. That no Muslim nation, aside from Bangladesh, and certainly not China or Russia, the ideological Mecca of the Communists, who are pressing for open-door policy for all comers to settle here, has admitted one Muslim Rohingya, is unimportant. Important for our limited purpose here is whether the Supreme Court has the power to decide whether or not they should be offered asylum in India. And, if yes, under what provision of the Constitution? So far, as any sensible person can see, it is a function of the executive to decide these matters, since these impinge on the sovereignty and security of the country. Indeed, if the court has to intervene, it ought to have intervened only to question the executive as to how some 40,000odd Rohingyas had already managed to slip into the country, with some of them settling close to the LOC in the Jammu sector. But the omniscient court, which has taken to dictating the height of hydro-power dams, thus delaying construction for decades, ordering the regulation of traffic, setting parameters for the location of liquor vends, approving the master plans for urban conglomerates, including which colony to be regularised and which not, for that court to pronounce on the entry or otherwise of Muslim Rohingyas will be akin to a walk in the park. It has always stretched its constitutional mandate, so why quibble now, when it seeks to vet the reports of parliamentary panels.

We thought the founding fathers empowered parliamentarians to make laws, the executive to implement them, and the courts to interpret the will of the people as expressed through the laws made by parliamentarians. Now, the court very often behaves like an unelected government, in effect making laws and enforcing them as well, at the pain of contempt proceedings against anyone defying the orders from onhigh.

Hopefully, the intervention of the venerable Venugopal, the first law officer of the country, would oblige Their Lordships to have a second look at the slow but certain re-writing of the Constitution at their hands, in violation of the spirit and design of the founding fathers. This must cease. Otherwise, sooner than later there would be a backlash. The promoter- editor of a news portal, which makes no bones of its anti-Narendra Modi agenda, has now been accused by one of his former colleagues of suppressing an exposé against Robert Vadra for seven long months. The suppression took place when he was the editor of a Chennai-headquartered newspaper. Even when Prashant Bhushan of India Against Corruption addressed the media, relying, mind you, on the documents furnished by the same correspondent, whose story was spiked by the self-styled free-media warrior, the paper published the report with a caveat from him, saying that “the documents reveal no illegality or impropriety on the part of Mr Vadra…” Really, Mr Editor? Such solicitousness for the good name of Sonia Gandhi’s son-in-law, when the entire world knows he has made money hand over fist using the Gandhi connection, only exposes these faux upholders of press freedom, doesn’t it? A photograph of Hardik Patel and two others “relaxing over drinks and namkeen” after a hard day’s work, ranting and raving against OBC reservations has gone viral on social media. The caption reads: Garib Kisan Thakan Utartey Huey (Poor fatigued farmers taking a break).