‘Activism of any institution has to be first directed

The Constitution does not contemplate a super-organ nor confers an over-riding authority on any one organ. No organ has any power to superintend over the exercise of powers and functions of another, unless the Constitution strictly so mandates.

Intervening in the debate in the Constituent Assembly, many learned members had expressed the view that the doctrine of judicial independence was not to enable the judiciary to function as a kind of a ‘super legislature’ nor a ‘super executive’. In the words of Pandit Jawaharlal Nehru, while speaking in the Constituent Assembly: “No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament, representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way… ultimately the fact remains that the legislature must be supreme and must not be interfered with by the court of law in measures of social reforms.”

In the early years of the republic, the Supreme Court had already recognised that the Indian Legislature had a distinctly superior position vis-à-vis the other organs of the state. The observations of the then Justice S.R. Das, who adorned the office of the chief justice of India with great lustre, in the famous case of A.K. Gopalan v. State of Madras (1950 SCR 88) made it very clear: “Although our Constitution has imposed some limitations… [it] has left our Parliament and the state legislature supreme in their respective legislative fields. In the main, subject to limitations… our Constitution has preferred the supremacy of the legislature to that of the judiciary… and the court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature… and this is a basic fact which the court must not overlook.”

However, of late, it is being noticed that the lines demarcating the jurisdiction of the different organs of the state are getting blurred. A section of the judiciary seems to be of the view that it has the authority by way of what is described as “judicial activism” to exercise powers which are earmarked by the Constitution for the legislative or the executive branches.

NO ONE can take exception to any decision in the exercise of judicial review (subject, of course, to the provision of review or appeal, where it lies) invalidating any law or executive action, but where it seeks to lay down some new policy to be adopted or actions to be taken and uses its supposed power to compel executive action on the same without any known authority or procedure, serious questions necessarily arise about the source of such power.

Now-a-days, there are umpteen instances where the judiciary has intervened in matters entirely within the domain of the executive, including policy decisions. Recently, a media correspondent has compiled a list of issues and matters in which the courts have apparently, if not clearly, strayed into executive domain or in matters of policy. He has noted that the orders passed by the hon’ble high court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.

The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers. The interim order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the judiciary and the legislature. I feel that these were instances of unfortunate intrusion by the Supreme Court into well-demarcated areas of powers of the legislatures, contrary to the provisions of Articles 122 and 212 of the Constitution. Chief Justice Verma has recently described the orders in the UP and Jharkhand cases as judicial aberrations and has expressed his hope that the Supreme Court would soon correct them.

IN my humble view, the contention that the judiciary should take on itself the responsibility of the governance of the country in matters which the Constitution has imposed on either the executive or legislature, has serious implications.

In a democracy, where rule of law and not laws of men prevail, for its every action or inaction, the executive authority must be and is accountable to the people. But where the judiciary interferes with policy decisions of the executive and takes decisions clearly of administrative nature, I feel that it may then be proper to ask: is the judiciary accountable to anyone for the discharge of functions of executive nature and what are the constitutional and legal sanctions behind such orders made and directions given by courts, by way of judicial activism?

If I may submit, the responsibility for managing public affairs should be well left to those on whom the Constitution has imposed such obligation and for which, in the ultimate analysis, they are accountable to the people. This accountability is what differentiates democracy from other systems of governance. Discharge of executive responsibilities by any other authority, howsoever highly placed, but non-accountable, is anathema in a democracy. There should be no assumption that any particular organ has any inherent superiority or a monopoly over concern for the people or that it alone can solve their problems. I believe that activism of any institution has to be, first and foremost, directed to the due discharging of its own basic and fundamental duties.

To my mind, what is required for any institution to perform most effectively is, to start with, a realistic role-perception within the broader systemic framework. Once the judiciary gets involved with an issue, which falls within the executive domain, it precludes the possibility of the legislature exercising its assigned role of ensuring executive accountability through effective legislative scrutiny. It is important for the judiciary to remind itself, if I may humbly submit, that its “task does not include an amorphous supervision of the government.”

The people occupy the pivotal position in any democratic set-up, as democracy draws its strength from the sovereignty of the people. The people’s representatives decide what laws have to be enacted for the governance of the country. The council of ministers has to execute the policies and programmes through the executive set-up. The legislature has the inalienable constitutional right to scrutinise and oversee the functioning of the executive, and can require the executive authorities to act according to the laws framed by the legislature and the policies and programmes that have its sanction. Elaborate procedures have been laid down for the legislature to discharge such functions of enforcing the accountability of the executive to it and through the elected representatives, to the people themselves. Obviously, the judiciary is not accountable to the legislature for orders of executive nature or which are in legislative domain passed by way of judicial activism.

I WOULD humbly refer to what I consider some very important issues in connection with the exercise of an activist role of the judiciary: One, what are the laws, legal principles or authorities which will be applied or followed by the judiciary in deciding matters which will require exercise of jurisdiction assigned to some other organ or authority? Would that depend on the ipse dixit of the learned judge or judges when the matter is res integra? And, two, what is the method or procedure provided by the Constitution or any law for enforcement of such orders?

In the absence of any procedure under any law made by the Parliament for enforcement of orders made in the PIL, relating to executive or legislative matters, can the courts enforce such orders by adopting novel methods like appointing monitoring committees, thus themselves entering into the arena or by taking recourse to the jurisdiction in terrorem, namely, the power to punish for contempt of court? I believe that the nation is entitled to know the answers.

ALMOST all votaries of judicial activism, including the hon’ble judges themselves, while exercising power in such assumed jurisdiction justify it on the supposed failure of the legislature or the executive authorities in taking proper action to mitigate the people’s grievances or to find solutions to people’s problems.

But with regard to dispensation of justice, how many ordinary citizens of the country, who are oppressed and subjected to various forms of discrimination and denial of rights, particularly women who are victims of torture and exploitation, can have access to the courts, specially the highest court of our country? How many dismissed employees, how many victimised teachers, how many senior citizens, how many disadvantaged people staying in far flung areas of the country who would need to seek justice can approach the apex court of our country? The geographical distance, prohibitive cost of litigation, inordinately long time taken for disposal of matters, discourage or otherwise make it impossible for ordinary litigants to approach the court.

The large number of arrears pending in almost all the courts is affecting the people’s faith in our justice-delivery system. These issues require to be given very serious attention not only by the legislature or the executive but also by the judiciary. One has to admit that in many instances the judiciary (without attributing any fault to it) is not able to cater to the needs of the common people of the country in adequate measure. Now, in such a case, can any other organ of the state take up on itself the right to exercise judicial powers on the plea that judiciary has not adequately been able to do so?

Excerpted from the Dr. Kailash Nath Katju Memorial Lecture on ‘Separation of Powers Under the Constitution and Judicial Activism’, New Delhi, April 26