Finance Minister
Arun Jaitley cautioning legislators against ceding more powers to the judiciary is a timely reminder of the courts’ increased intrusion into the government’s actions. “Step-by-step, brick-by-brick, the edifice of India’s legislature is being destroyed,” he recently warned in the Rajya Sabha after the Opposition sought a court-monitored dispute redress mechanism in case of the GST.
The Supreme Court has been activist in its interpretation of certain provisions in the Constitution but it is the day-to-day judicial control and correction of the executive branches of government that set it apart from other common law countries.
This judicial activism began when access to courts was opened up to the poor, indigent and disadvantaged sections of the nation and their basic rights were enforced through what has now become the Public Interest Litigation (PIL). The judiciary, led by the Supreme Court, became an active participant in the dispensing of social justice and increased its relevance to the nation in a manner not envisaged by the makers of the Constitution.
This activism, widely welcomed in India and acclaimed abroad, has, however, metamorphosed into a correctional jurisdiction that the superior courts exercise over governments and public authorities. As a result, over the years, the judiciary in India has acquired the supremacy over the legislature and the executive, despite not having, in Hamilton’s famous words, the power of the purse or the sword.
The PIL began haltingly, with little idea of its potential, when the Supreme Court in 1980 entertained complaints by social activists drawing its attention to the conditions of certain sections of society or institutions deprived of their basic constitutional rights. This easy approach by disregarding the conventional requirement of the applicant’s locus standi and the non-adversarial character of the courts’ intervention, came to be widely appreciated and even imitated by other common law jurisdictions. Article 38 of the Constitution of South Africa adopted the relaxed locus standi rules for anyone acting in public interest to enforce the Bill of Rights.
When the Emergency came to an end in 1977, the Supreme Court, as if to refurbish its image in a new political climate, became more responsive to socio-economic changes in legislation. For one thing, the right to property was deleted from the chapter of Fundamental Rights in the Constitution (44th Amendment Act, 1978), leaving no scope for invalidation of property laws by the courts. Thereafter, by a process of reinterpretation of two fundamental rights — the Right to Personal Liberty in Article 21 and the Right to Equality before Law in Article 14 — the court gave the judiciary an enlarged power of review to protect the basic rights of citizens.
The Supreme Court, in
Maneka Gandhi (a minor case of the government not granting a passport in 1978) and other cases, overruled Gopalan v State of Madras (1950). It now held that “law” in Article 21 required more than mere laws made by a legislature and that the procedure referred to had to conform to the requirement of reasonableness in terms of fundamental rights. The “procedure established by law” of Article 21 now meant that the law or action by the government must be just, reasonable and fair. The apex court also adopted a revisionist interpretation of “life” in Article 21, by enlarging its dimensions from not being deprived of life without authority of law but as an affirmative guarantee for the dignity of the individual and the worth of the human life. This interpretation enabled the court to assume jurisdiction in almost all matters for the purpose of ensuring good human existence. Simultaneously, in Maneka Gandhi and subsequent cases, the apex court, in a new interpretation of the Right to Equality before law in Article 14, imposed the condition of reasonableness on every law and action of the government.
The PIL was originally conceived as a jurisdiction firmly grounded on the enforcement of basic human rights of the disadvantaged unable to reach courts on their own. The courts’ function was to supplement the other government departments in improving the social and economic conditions of the marginalised sections. It did not assume the functions of supervising and correcting the omissions and actions of government or public bodies; it, rather, joined them in a cooperative effort to achieve constitutional goals.
Over the years, however, the unexceptional social action dimension of the PIL has been diluted, converted, and eclipsed by another type of “public cause litigation”. In this type of legal process, the court’s intervention is not sought for enforcing the rights of the disadvantaged but to simply correct the actions or omissions of public officials, government departments or other public bodies.
Taking advantage of the relaxed locus standi requirements for petitioners, the court was moved to correct the discretionary powers of ministers to allot petrol pump sites, shops sites and stalls. It laid down rules for the conduct of important public institutions and authorities. It gave directions to the Election Commission to order candidates to disclose their criminal convictions, their assets and liabilities at the time of elections, called for quotas in medical and engineering colleges and issued orders to safeguard women from sexual harassment at workplaces. It ordered control over automobile emissions, mandatory wearing of seat belts and helmets, action plans to control and prevent the menace of monkeys in cities and towns, among others.
The Supreme Court also monitors the conduct of investigating and prosecution agencies, a process which began in Vineet Narain vs CBI (1998), in which the court entertained a petition to get the CBI to investigate high-ranking officials suspected of corruption. The court directed the government to set up a Central Vigilance Commission (CVC), with statutory status, and gave orders for the selection of its commissioner.
In 1993, the court even issued orders on the conduct of a military operation in Hazratbal,
Kashmir, where the army had, as a matter of strategy, restricted food supplies to hostages. The court ruled that food of 1,200 calorific value should be supplied to hostages. It prompted an army general to write, “For the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”.
Even proceedings of legislatures have not been out of its ambit. In the Jharkhand assembly case, the speaker was directed to conduct proceedings as per a prescribed agenda and record them for the court. These orders were made in spite of Article 212, which forbids courts from inquiring into any proceedings of the legislature.
In several PILs concerning the environment and the welfare of those disadvantaged, the court has directed policy changes in administration. In the 2G spectrum case, a two-judge bench differed from the policies of the expert body, the Telecom Regulatory Authority of India, and of the government, which had issued spectrum licenses at a fixed price and on a first come, first served basis. The court invalidated 122 spectrum licences allotted by the government and held that all public resources and assets can only be disposed off through a public auction. This far-reaching policy direction led the president to make a reference to the court for its advice, under Article 143 of the Constitution, as to whether such a direction was correct and was to be followed. A larger bench of the court made a correction: The policy of auctioning was not for every public resource.
The public in India has now become accustomed to seeing the Supreme Court correcting government action in trifling matters which should not be its concern. The apex court has original jurisdiction only to entertain petitions for breach of fundamental rights under Article 32 of the Constitution, and therefore these micro-managing exercises are hung on the tenuous jurisdictional peg of Article 32 taken with Article 21 or Article 14. In reality, no legal issues are involved in such petitions; the court is only moved for better governance and administration in such cases, which does not involve the exercise of any judicial function. Jaitley’s pungent statement, therefore, should revive the debate on the overreaching jurisdiction of the Supreme Court.
The writer is a senior advocate of the Supreme Court, former solicitor general of India and former advocate-general of Maharashtra.
