An Edit from EPW

The following editorial from the Economic and Political Weekly is reproduced here as it is relevant to the issue of judicial overreach, discussed in my earlier post (below).

Constitutional Separation Strained

When a monitoring committee appointed by the Supreme Court is invested with the power to decide which shops to seal and when, there is reason to doubt if the system of separation of powers factored into the Constitution is still in place. The Constitution enjoins upon the authorities to act in aid of the court, but bureaucrats and their political masters are known to have been lax in this respect at times. This circumstance may justify the creation of a monitoring mechanism but is that sufficient ground for taking away the bureaucrats’ authority and vesting it elsewhere?
Even as the Supreme Court’s monitors were exercising their new-found authority in Delhi, in distant Chennai the high court, treating the report of the local judicial academy director as a public interest petition, was directing the Tamil Nadu government to prepare a perspective policy note with regard to immoral trafficking. It specified whom all the government should consult and what its approach should be. When the document is ready, the government will presumably be required to place it before the judges who had ordered its preparation. If it does not accord fully with their thinking, they may want suitable changes made in it. While this process goes on, what happens to the legislature, to which the government is supposedly accountable on policy matters?
Recently a Supreme Court bench, going beyond the prayers made in the petition before it, ordered the government to set up a committee to look into the question of ragging in colleges. The matter before it related to the death of a professor in Ujjain during violence touched off by university union elections. As a first step, the court set up a committee to study the issue of university union elections, and on the basis of its recommendations formulated a scheme for conduct of elections. What led the learned judges from elections to ragging is not clear. Apparently something they heard or read had convinced them that they had to do their bit to put an end to ragging. If they had resorted to the standard practice of issuing notices and hearing the parties concerned, they would have found that several state governments have been seized of the problem and some have even taken legislative measures to tackle it. The judges did not stop with the directive to appoint a committee. They also decided who should head the committee. Their choice of a former director of the Central Bureau of Investigation to head the probe suggests that they see ragging in colleges as a police problem rather than an educational problem. If two judges had been similarly exercised 50 years ago they would probably have gone no farther than voice their anguish over ragging and express the hope that the authorities would take such administrative or legislative measures as may be necessary to check the menace.
Such judicial restraint is now a thing of the past. Judges are no longer content with striking down an improper order and asking the authority concerned to decide the matter afresh in a proper manner. They proceed to decide the matter themselves, in effect substituting their judgment for that of the officer who issued the impugned order. Sometimes it looks as though the judges are actuated by the thought that anything the executive can do the judiciary can do better.
Some issues that are now at various stages of adjudication have raised fears of a major confrontation between the judiciary on the one hand and executive and the legislature on the other. Such fears have arisen in the past, too, but all limbs of the state were able to summon sufficient wisdom to resolve the conflicts without injury to any of the parties. However, there are limits to which reliance can be placed on good sense, especially in the context of the feeling that the system of separation of powers is in jeopardy. It needs to be acknowledged that it was gross executive improprieties that paved the way for the judiciary to make inroads into its realm. What began as legitimate exercise of judicial review of administrative decisions has willy-nilly led to a situation in which the courts have even entered the area of policy-making. There is no denying the fact that such judicial explorations have met with a wide measure of acceptance, especially in middle class minds. This, however, does not make them either justifiable or desirable. The time has come to ensure that the constitutional system of separation of powers is fully respected.
---Economic and Political Weekly, Mumbai, November 11, 2006

JUDICIARY: TIME TO ROLL BACK

The conference of Chief Ministers and Chief Justices of the High Courts, held in New Delhi on April 8, 2007, provided the heads of the executive and judicial branches of the Indian state an opportunity to clarify their positions on some contentious issues. Sadly, neither side held out hope of correction.

In the light of the experience of the last 57 years, the citizen can feel assured that the constitutional mechanism gives him reasonable protection against excesses by the executive and the legislature. But he cannot be equally sanguine about excesses by the judiciary.

Article 142 of the Constitution vests in the Supreme Court wider powers than are enjoyed by the judiciary anywhere else. It gives the apex court the power to pass any decree or order it may consider necessary to do complete justice in any cause or matter before it. By and large, the court has used this power judiciously and in a manner beneficial to the society. However, it has been invoked on some occasions to perform functions that properly belong to other institutions. The Supreme Court’s exertions seem to have given some high court judges the impression that they too can exercise such wide powers. A high court judge’s midnight order directing an army unit to go to the aid of the Central Bureau of Investigation, which was looking into corruption charges against the State’s Chief Minister, is a case in point.

A depressing aspect of the current scenario is the absence of a reliable mechanism to inquire into allegations of impropriety against members of the higher judiciary. Impeachment, the procedure prescribed by the Constitution, is too cumbersome. Parliament resorted to it only once, and on that occasion the parties reduced it to a political exercise by issuing whips to the members. Of the three limbs of the state, the judiciary has turned out to be the least amenable to self-regulation. The executive and the legislature have demonstrated that they have the ability to weed out corrupt elements in their ranks. The judiciary has yet to demonstrate such ability. Judges who attracted serious charges have been able to braze them out and even move up the ladder.

The first Attorney-General, M. C. Setalvad, in his autobiography, “My Life”, mentions how Jawaharlal Nehru ignored his suggestion to make an example of a high court chief justice, who had submitted a false affidavit about his date of birth, and accepted Chief Justice P. B. Gajendragadkar’s advice to allow the wrong-doer to make a quiet exit in order to protect the image of the judiciary. A half-century later, the thinking at the highest level of the judiciary still is that sweeping the dust under the carpet is the best way to project a clean image.

The last Chief Justice, Y. K. Sabharwal, thought it fit to clear the name of Justice Jagdish Bhalla of the Lucknow bench of the Allahabad High Court without hearing the Committee on Judicial Accountability, which had raised an allegation of corruption against him. The President returned to the government the file containing the Supreme Court collegium’s recommendation that Justice Bhalla be appointed Chief Justice of the Kerala High Court. The government felt helpless as the Supreme Court has effectively limited its role in the process of appointment of chief justices to that of a messenger who conveys the collegium’s decision to the head of state. A few social activists of Kerala publicly demanded that Justice Bhalla should get his name cleared through a credible and transparent process before taking charge as Chief Justice of the State high court. The collegium stood by the decision to promote Justice Bhalla but decided to send him to Chattisgarh instead of Kerala.

The Prime Minister’s statement that the constitutional authorities, including the judiciary, should not overstep their limits is only a platitude. Eminent jurists have acknowledged that the courts have sometimes overstepped their limits. While the judiciary has been able to step in and check executive and legislative excesses, the executive and the legislature have generally remained helpless witnesses to judicial overreach. Beginning with the Golak Nath judgment of 1967, the Supreme Court has effectively amended the Constitution several times in the guise of interpretation. In the process, it has given itself authority beyond what the Constitution-makers provided for. By interpreting “consultation” to mean “concurrence” it has acquired the right to have the last word in determining its own composition and that of the high courts.

The Supreme Court collegium, which wields powers that once vested in the executive and were exercised by it, is a mere creature of the court. Must the President and the Council of Ministers abdicate their constitutional powers and submit to the wishes of this body, which does not even have constitutional sanction beyond the court’s say-so?

The judiciary’s inventive genius has introduced into the constitutional scheme concepts like basic structure and creamy layer, which neither the Constituent Assembly nor Parliament, which alone was mandated to make changes in the Constitution, had envisaged.

The constitutional authorities who wrangle over their respective powers will do well to read and re-read the Preamble and familiarize themselves with the role of We, the People of India, who are the makers of the republic and the Constitution. It was in their name that the Constituent Assembly solemnly resolved to constitute India into a sovereign democratic republic and adopted and enacted the Constitution, by which all constitutional authorities swear.

We, the People, having enacted the Constitution, did not turn it over to the executive or the legislature or the judiciary for safe-keeping. The Preamble says, “We, the People of India … give to ourselves this Constitution”. This means the people remain its custodians. Indira Gandhi’s Emergency regime, which derived its authority from a provision in the Constitution meant for dealing with certain eventualities, posed the biggest constitutional challenge from the executive to We, the People. The legislature became an accessory after the event. The judiciary, with its power to pass any decree or order to do complete justice, could not rescue the people. In that critical situation, the people stepped forward to discharge their responsibility as custodians of the Constitution: seizing the opportunity provided by the delayed general election, they threw out the Emergency regime lock, stock and barrel.

The essential message of the Preamble is that sovereignty resides in the people. The judiciary has, in effect, ousted them and vested supreme authority in the Constitution. Its argument that the Constitution is supreme since all functionaries derive their authority from it is sound so far as it goes. It must go farther and acknowledge that the Constitution itself derives its authority from We, the People.

Under the system of mutual checks and balances, the executive and the legislature have the primary responsibility to restrain the judiciary when it overreaches itself. They both must gracefully accept the fact that many acts of judicial overreach enjoy a large measure of public support as they are in the interests of We, the People and in accord with their thinking. But there are acts of overreach, which are not in accord with the interests and thinking of We, the People. Curtailment of Parliament’s right to amend the Constitution and negation of social justice by interpolating extraneous concepts such as creamy layer probably fall in this category. Such acts of overreach need to be rolled back. Two paths are open to achieve this end. One is for the Supreme Court to correct aberrations in earlier decisions through fresh judgments. The other is for Parliament to amend the Constitution to restore the original position.

The Supreme Court recently ruled that it is entitled to look into the constitutional validity of laws placed in Schedule IX. This has naturally upset the executive and the legislature, which have been using this schedule as a convenient place for safe parking of laws of doubtful constitutional validity. Every law must fall within the four corners of the Constitution. If the court, which is the sole authority to determine the validity of a measure, holds that a law is unconstitutional, the executive must either abandon it or amend the Constitution to cure the infirmity.

We, the People, as the makers and custodians of the Constitution, are the masters of the executive and the legislature as well as the judiciary. Not having to battle in grime and dust to get to the helm, the members of the judiciary do not have the opportunity to know the large amorphous body that is We, the People as intimately as those belonging to the other estates. But they should not make the mistake of imagining that the babalog participating in sponsored dharnas staged in air-cooled shamianas outside a posh New Delhi institution or the bright young things arguing excitedly in television talk shows constitute We, the People of India.