Why the judiciary must step back
Courts have overstepped. It is time to return to the original constitutional division of power between the organs of the State
Much has been written and spoken about the judiciary overstepping its jurisdictional limits set by the Constitution and arrogating to itself powers outside its legitimate domain. The pandemic has led the courts to new levels of overreach in the form of suo moto notice of developments, becoming both the petitioner and judge.
The Supreme Court (SC), always called the sheet-anchor of democracy and justice, seemed to have lost its proverbial cool, and reportedly made some derogatory observations, admonishing the Election Commission and the government. Even obiter dicta remarks with a tinge of negativity coming from the bench are likely to make headlines. Therefore, judges are expected to be more circumspect. Perhaps taking a cue from SC, several high courts also indulged in the unfortunate game of admonishing democratically constituted governments.
Unlike the United Kingdom, we have a written Constitution which establishes the three organs of the State — the executive, the legislature and the judiciary. It defines and delimits their jurisdictions and powers, demarcates their responsibilities, and regulates their relationship with each other and with the people. None of the three can assume for itself a position superior to the other two, except as ordained by the Constitution.
Our Constitution provides for judicial review of legislation and administrative action. But, unlike the United States, our founding fathers provided for only limited judicial review. It was a corollary to their rejecting the “due process of law” clause and instead, accepting the “in accordance with law”, formulation — even though SC has tried to bring back the due process concept through the backdoor because it gives more power and freedom to courts pronouncing on the vires of legislation or executive action.
Under the Constitution, the council of ministers is responsible and answerable only to the House of the People. No institution, however supreme in its domain, is above the Constitution and the people. No organ or institution can, therefore, cast itself in the role of a conscience-keeper of the nation or of a superior which can call the duly elected government to order. Courts, in particular, should never be seen as supporting the government in its wrongdoing or as adding fuel to fires lit by the Opposition. Party politics, struggle for power, political management and public administration belong to a different genre, and judges can never be substitutes for those in government or in the opposition.
No doubt, the independence of the judiciary is important, but so is the independence of the Parliament, the Election Commission and other institutions. The popularly elected government, which is, at all times, accountable to the supreme masters — we, the people of India — equally deserves to be respected by all citizens and institutions.
In the present case, like a superior officer asking a subordinate authority, SC is reported to have gone so far as to have called for data and reports with facts, figures, proposed plans and strategies to meet the situation, as if the government was not responsible to Parliament but to SC acting as a super cabinet.
While the situation in the wake of the pandemic’s second wave is too terrible not to disturb any citizen, all the three organs of the State, all institutions (governmental and non-governmental), and all political parties (whether in government or in the opposition), would best serve the nation and citizens by coming together — assiduously performing their assigned role, understanding each other’s difficulties, instead of interfering in each other’s sphere, and shouting, yelling and calling each other names.
As far as the judiciary, from top to bottom, is concerned, it has much on its plate which needs to be executed — to prepare a plan and chalk out strategies to clear the backlog of millions of pending cases, improve the justice delivery system, reduce long delays, and make justice less costly and more affordable for citizens.
No institution can encroach on the territory of another. For example, Article 124 of the Constitution provides for SC consisting of a chief justice and “of not more than seven other judges”, “unless Parliament by law prescribes a larger number”. This number is now 34. Every time the number has gone up, Parliament has done it by law. It could not be done by SC itself on the ground of independence of the judiciary.
On the other hand, in the judges’ appointment case, SC struck down articles 124A and 124B providing for National Judicial Appointments Commission (NJAC). This was an unconstitutional judgment, violative of constitutional provisions with the court assuming constituent powers which it does not have. To judge the constitutionality of any act, the point of reference has to be the existing text of the Constitution. Also, under Article 368, constituent power is specifically vested in Parliament and an amendment of the Constitution can be “initiated only by the introduction of a Bill for the purpose in either House of Parliament”.
The President, the prime minister and all the ministers and, for that matter, all the judges themselves take oath by the Constitution, which includes all the 104 Amendments with the 99th Amendment providing for NJAC. As for the argument that the power to amend is a limited power, the court’s power to interpret is equally a limited power.
All this is relevant in the present case because it is felt that things would not have come to such a pass, but for a weak-kneed response in accepting an unconstitutional and untenable verdict delivered by the beneficiaries themselves. And that is why the constitutional way to handle the pandemic is to leave it to the separate organs of the State to perform the functions — and only the functions — they are meant to.
Subash C Kashyap is a veteran constitutional expert and former secretary-general of the Lok Sabha The views expressed are personal