Judicial over-reach

INTRODUCTION

The role of the judiciary in India has recently come under considerable attack, particularly from the legislative branch, which feels that the courts have been exceeding their authority in interpreting laws and that they have become an extra-constitutional lawmaking body.  This has been called judicial overreach. A few examples:

 Supreme court has ruled that operators with canceled 2G licenses should stop services. Iron ore mining has been banned in Karnataka and Goa. Gujarat high court has ordered that all new vehicles registered in the state should run on compressed natural gas. Chandigarh high court is deciding what toll plaza in Gurgaon.

Some are of the opinion that the courts have moved far beyond the function assigned to them under the constitution. In a charged debate in supreme court, the center through Attorney-general K K Venugopal said.

The top court has' acquired vast power', 'that it has become the World's most powerful court' he further said top court had added ' 30 new rights to the fundamental rights' already enshrined in the constitution. Responding equally strongly C J I  Dipak mishra said,' this court has vast power to do substantive justice. We have to strike balance in every case [1] We understand that  we cannot cross the Laxshaman Rekha speaking  before a five judge bench, on the issue of whether parliamentary reports can be used in court proceeding,  The AG also said , emphasizing his point of 'Judicial overreach'' that the court's ban on highways liquor  vends has cost 100,000 Jobs.

Chief Justice of India TS Thakur's unusual comments on Prime Minister Narendra Modi's Independence Day speech has brought the wrangling between the government and judiciary over judicial appointments out in the open.

Addressing an Independence Day function organized by the Supreme Court Bar Association, the CJI said: 'I was hoping he (Modi) will speak about issues plaguing the justice delivery system. However, he did not. I request the government to pay attention to our judiciary, especially appointment of judges.'

Coming barely three days after the CJI threatened to pass judicial orders if the government didn't clear the logjam over judges' appointments soon, the comments point to the widening gap between the two sides over the prickly issue.

Justice Thakur had made a rare emotional appeal to PM Modi in April to double the number of judges to handle an 'avalanche' of cases and criticized the Centre and state governments for unfairly putting the onus on the judiciary to clear the burgeoning backlog.

On the face of it, the showdown appears to be over the selection of judges. But the real issue lies in the growing imbalance in separation of power. The government sees it as an instance of judicial overreach. Ever since the judiciary arrogated to itself all powers to appoint judges through a judicial coup in 1993, the executive - irrespective of ideology of the party in power - has been trying to 'restore' the balance.

Political leaders have openly criticized the collegium as an extra-constitutional system under which judges appoint judges under complete secrecy. That's why Parliament unanimously passed the National Judicial Appointments Commission (NJAC) Act to create a six-member panel headed by CJI with two senior most SC judges, Law Minister and two eminent persons as its members to appoint judges.[2]

But the SC declared the NJAC Act unconstitutional and revived an admittedly opaque collegium system. Even after another round of hearings on making the collegium transparent, the SC left it to the government to draft Memorandum of Procedure (MoP) resulting into the current logjam. Had the SC clearly laid down guidelines to make the collegium transparent, the present stalemate could have been avoided.

He said: 'The issues of MoP and transparency were argued before the constitution bench. It would have been better if they (SC) had laid down the procedure to make the collegium system transparent, rather than leaving it to the government.'

As the judiciary and the government spar over selection of judges, the cases keep on piling up. According to official figures, India's 24 high courts have nearly four million cases pending before them while 478 out of 1,056 sanctioned posts remain vacant. Around 30 million cases await disposal in trial courts where 4,432 out of 20,502 sanctioned posts of judges were yet to be filled. The SC too has only 28 judges against the sanctioned strength of 31 judges to tackle around 60,000 cases.

The Indian judicial system is one of the largest in the world. But, according to a 2012 National Court Management Systems report, although the number of judges increased six-fold in the last three decades, the number of cases shot up 12-fold. Even by conservative estimates, the number of cases reaching courts will touch 15 crore requiring at least 75,000 judges in the next three decades, the report said.

There are other factors also that contribute to the pile-up of cases. The infrastructure available for courts - particularly lower courts - is inadequate, besides serious shortage of judges. Many courts function from rented buildings, while nearly 7,000 proposals for building courthouses were still awaiting state governments' clearance.

Despite the Law Commission, parliamentary standing committee and the Supreme Court saying that the judge-population ratio in India should have 50 judges per one million people, the ratio continues to be abysmally low at 13 judges per one million people.

'Nothing has moved' since 1987 when the Law Commission had recommended increase in the number of judges from then 10 judges to 50 judges per one million people, CJI Thakur had said. According Law Commission's 120th report submitted to the government in 1987, countries such as the US, England, Canada and Australia had a much better judge-population ratio of 107, 50.9, 75.2 and 41.5 way back in the 1980s.

As a result of poor judge-population ratio, even if judges work at a frantic pace, they may never be able to clear the backlog. This situation remains like this despite judges across the court system handling 2,600 cases each annually and together clearing 20 million cases, the CJI had pointed out. The current stalemate has only worsened the situation.

The judicial coup happened in the 1990s when coalition politics and corruption cases made the political class too vulnerable to assert. But with the BJP enjoying an absolute majority in the Lok Sabha, it's only natural for the government to attempt to regain the lost ground for the executive and 'restore' the balance in separation of power envisaged under the Constitution.

PM Modi had in April said his government was ready to discuss the issues to find a way out. If both sides don't resolve the stalemate at the earliest, they can do it only at the cost of their credibility.

ANALYSIS

Justice is the bread of the nation- it is always hungry for it. And, it is well known that justice delayed is justice denied. The role of judicial activism in India has been to provide a safeguard to the common man and indigent against an insensitive system. This noble task, taken upon itself by the courts, has provided succour, relief and requisite legal remedies to the needy and deprived, over the past few years of judicial intervention and cementing. However, recently in a surprising censure of itself in recent times, the Supreme Court, has observed that judicial activism has disturbed the delicate balance of powers enshrined in the Constitution.

'Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State i.e. the legislature, the executive and the judiciary must have respect for the others and not encroach into each other's domain,' observed a bench comprising Justices A K Mathur and Markandeya Katju. The Hon'ble Bench also observed that these were matters pertaining exclusively to the executive or legislative domain and if there was a law, judges could certainly enforce it but judges could not create a law and seek to enforce it.

The court was unwilling to accept the 'justification' given for judicial encroachment that the other two organs are not doing their jobs properly. It said that even assuming if this was so, the same allegation could be made against the judiciary too because there were cases pending in courts for half a century. Judicial activism is not an unguided missile and failure to bear this in mind would lead to chaos. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint[3].

While observing that the courts have 'apparently, if not clearly, strayed into the executive domain or in matters of policy', it questioned several orders of the Delhi High Court on the legality of constructions in Delhi, identifying buildings to be demolished, age and other criterion for nursery admissions, unauthorised schools, criterion for free seats in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in a hospital, the air delhiites breathe , begging in public , use of subways ,nature of buses we board ,size of speed breakers on Delhi roads , autorickshaws overcharging and accidents and enhancing fines.

Due to the confusion following the carping comments of the Supreme Court on judicial activism, on the tendency of judiciary to encroach into the powers of the Legislature and the Executive, a two judge bench of the apex court declined further hearing of a matter relating to rehabilitation of victims of flesh trade and referred the 2004 PIL to a larger bench in view of the observations made by the bench comprising of Hon'ble Justices A K Mathur and Markandeya Katju. However, this temporary flux was resolved by a three judge bench of the Supreme Court, headed by Chief Justice K G Balakrishnan, which took the sting out of the earlier apex court order decrying judicial activism. 'We are not bound by the two-judge bench order,' the three-judge bench headed by the chief justice said, while issuing notices to the central and UP governments in a suit relating to the plight widows in Vrindavan and Mathura.

The Supreme Court has now asked the High Courts to follow guidelines it had laid down 14 years ago to 'ruthlessly' weed out motivated PILs by 'imposters and busybodies' and reject petitions attacking justifiable executive actions for oblique motives 'under the guise of redressing a public grievance'. It is a great relief to the common man that the record has been set right by the bench headed by the Chief justice of India because the courts are the last ray of hope for the oppressed, 'bewildered' and politically powerless. Every democracy has to have a watch dog to check and balance the untrammeled powers of the state in order to ensure that, in the garb of 'public interest', the discretionary powers are not exercised arbitrarily to rough ride the fundamental rights of the citizen.

While it is imperative to exercise justifiable restraint and caution to ensure that judicial activism does not become judicial adventurism or tyranny, this power should be exercised only in exceptional circumstances and that too, only in public interest. Truly, judicial activism 'is the oxygen of the rule of law'. The constitutional revolution, which was the vision of the Founding Fathers, was entrusted to the judiciary, giving it powers to enforce, through 'writ power', the socio economic liberation implicit in the fundamental rights and other avant-garde provisions of the Indian Constitution- the oasis of our democracy. "It is the courts, which have stood the test of time and served the cause of social-economic justice only to preserve the fundamental rights and duties of the citizen. When the executive violates these rights, the court cannot abdicate its responsibility or jurisdiction, oath bound as it is, to uphold the Constitution."

It is, therefore, fair and just that the Chief Justice of India has assured the country that the confusion likely to flow from the two judge bench ruling, will be set at rest by a larger bench laying down parameters governing PIL jurisdiction and judicial activism without trespassing into the realm of judicial overreach.

In India, the content and reach of judicial power is not defined -neither in our Constitution nor anywhere else. Many believe that a written Constitution that gives power to the courts to strike down legislation made by a country's elected Parliament is undemocratic: it enables unelected judges (they say) to thwart the wishes of the elected representatives of the people in Parliament. There may be something to be said for this point of view. But it is too late in the day to complain. For more than 57 years, we have been working a Constitution which is federal in nature with allocated subjects of legislation separately and exclusively given to the States and to the Union; there is also a chapter on Fundamental Rights: all laws and all executive actions inconsistent with them are expressly declared to be 'void'. Some authority then would have to be the final arbiter -in a controversy. And that arbiter under our Constitution is ultimately the country's highest court.

It has been said that where there are no judicially manageable standards our courts should not interfere; they should leave it to the elected representatives of the people. This is correct -in theory of course.

After 60 years of Independence, and after 14 general elections to the Lok Sabha, and all the publicity that is given to proceedings in Parliament, ordinary people -people who have voted their elected representatives into Parliament -remain generally unsatisfied as to how MPs function: if and when they function at all. The reason for what the Prime Minister recently characterised as a 'judicial over-reach' is that since power grows by what it feeds on, judicial power also grows by accretion, by the mere circumstance that other constitutional bodies and authorities set up to legislate and to pass administrative orders have failed when called upon to act.

The 'judicial over-reach' the Prime Minister spoke about is the direct result of legislative and executive neglect or 'under-reach': poor performance in the making of laws and their execution. If judges need to introspect, politicians also need to introspect and ask themselves whether they have fulfilled the aspirations of the people who put them at the wheel of governance. If judges are to get off the backs of parliamentarians, politicians and bureaucrats, those who claim the right to govern must come up with a much better record of performance: only when they do, will the people of this great country give us back majority governments both at the Centre and in the states.

I do not subscribe to the view that there has to be a 'balance of power' amongst the three organs of the State, except for a limited purpose. But I am definitely of the view that the judicial power, howsoever defined, cannot be trenched on either by Parliament or by the Executive.

Freedom -freedom for citizens like you and me -can only be secured through courts, not through Parliament or through executive Governments. Yes, you may criticise this or that judgment of the Supreme Court or of the High Courts which have needlessly interfered in PILs -so-called Public Interest Litigation -with the day-to-day governance of the country which ought be left to the elected representatives. It is such PILs that have given our higher judiciary a bad name.

Of course the Judiciary has to set its own house in order which is the job of the Chief Justice of India to oversee. Parliament too must -like the Judiciary -set its own house in order. And the fact that it has at the instance of the hon'ble speaker contemplated action with such promptitude in the recent human trafficking scandal in which some MPs are allegedly involved is a good sign: it has kept the judges off the back of politicians in managing their own affairs.Laws passed by Parliament, and decisions taken by the Executive are all subject to the overall scrutiny of the court for legality and constitutional transgressions.

Yes, the judges of the High Courts and of the Supreme Court have been given a very important position in our Constitutional scheme but the institution of the courts, especially the established courts, can only survive if people retain confidence in them. So judges too must at all times and at all places be seen to be behaving ethically, with honour and within the Constitution and the law.

CONCLUSION

The Constitution has entrusted to our highest court the custody and control of the Constitution -and of all institutions created under it. The width of judicial power is as long as its reach, subject only to its acceptability by the people: everything turns on the first three words of our Constitution: WE THE PEOPLE. The opening words do not say: 'WE THE REPRESENTATIVES OF THE PEOPLE'.

Ample judicial power administered with ample judicial wisdom -that is the need of the hour. Not a curtailment of judicial power, but wisdom in its administration. Chief Justice Dipak Misra on 28th October this year said 'How far can courts go? PILs were devised as a mode to address the grievances of the poor and underprivileged who had no access to justice. But now it has gone on to investigate scams and many other fields. Now, it is used to question whether there s... 'For what PILs were originally conceived and now what it has become..what it has come to..', an upset Chief Justice Dipak Misra told senior advocate C U Singh during a nearly half an hour long hearing of a Public Interest Litigation ... At a time when the government is crying hoarse over the Supreme Court's Vodafone judgment and is pleading for a relook at its 'auction of all natural resources' dicta, Chief Justice of India S H Kapadia on Wednesday said judicial overreach in some cases could have disturbed the delicate balance of power among the three organs of governance.

While calling for an extremely careful approach on the part of the executive and legislature in enacting law on judicial accountability so as not to curtail judicial independence, the CJI said judges of constitutional courts should not give interpretation to provisions of the Constitution to affect the balance of power among the three organs -legislature, executive and judiciary.

"I find the balance getting disturbed by some of our judgments. Respect for the powers of other institutions of governance should be part of the judicial adjudication process," he said in his speech as the chief guest at the Independence Day celebration organized by Supreme Court Bar Association.

He said Parliament and executive had well-defined powers under the Constitution and these needed to be respected by the judiciary. "Legality and legitimacy are important concepts and go hand in hand. If there is excess of judicial overreach, then the legitimacy of judgments will be obliterated," he warned.

Justice Kapadia said in the last six decades, the SC had given several landmark judgments on fundamental rights but very few had been rendered on the constitutional structure provided under the Indian Constitution, distribution of legislative powers, provisions dealing with relationship between the Centre and the states, establishment and constitution of Supreme Court and the provision for impeachment of judges.

He said a wider and in-depth study on these aspects was needed as the Constitution was more than a written text. "A superficial reading of select provisions of the written Constitution, without more, may be misleading. It is necessary to make a profound investigation of the underlying principles animating the whole of the Constitution, including the principles of idealism, democracy, constitutionalism and the rule of law," the CJI said

In a rare show of unity, the ruling Bharatiya Janata Party (BJP) and the opposition came together, albeit briefly, to question judicial overreach.The display of unity came on a day the Supreme Court roundly criticized the centre and state governments for failing to respond to the drought which has ravaged large parts of the country. Addressing the Rajya Sabha during a debate on the finance bill, finance minister Arun Jaitley pointed out that progressively, the judiciary was appropriating the powers of the executive. Referring to the Supreme Court ruling in the drought case, Jaitley said, 'Step by step, brick by brick, the edifice of India's legislature is being destroyed. 'Both opposition and treasury benches welcomed Jaitley's remarks by thumping on their desks in support.

Earlier in the day, the apex court directed the centre to set up a National Disaster Mitigation Fund within three months. 'We have the National Disaster Response Fund and the State Disaster Response Fund and now we are being asked to create a third fund. The appropriation bill is being passed. Now outside this appropriation bill, we are being told to create this fund. How will I do that? India's budget-making is being subject to judicial review,' Jaitley said. Referring to the Congress's demand to set up a dispute-resolution authority for resolving disputes under the goods and services tax, which will be headed by a judge, Jaitley said this was a provision that was strongly opposed by the states and pointed out that taxation matters are a political decision.

'Why do you want to surrender parliamentary and state legislature's jurisdiction to the courts? Taxation is the last of the powers with the legislature and you are talking about surrendering it,' Jaitley said, addressing the Congress. Jaitley has been a critic of courts chipping away at the powers of the legislature, which he points out reflects the will of the people. The judiciary has delved into several aspects of governance, including spectrum auctions, coal block allocations, right to information and powers of the Central Bureau of Investigation.

In fact, jurist Upendra Baxi in an interview to Mint called the apex court an institution of governance. Last year, after a five-judge bench of the Supreme Court struck down the National Judicial Appointments Commission and a related constitutional amendment, Jaitley had voiced similar criticism.In a post on a social networking website, Jaitley wrote that in striking down the five-member panel, the judiciary had forgotten the larger constitutional structure - that of Parliamentary democracy which represents the 'will of the sovereign'.[4]

[1] The Economic Times Dated 27th oct 2017
[2] Hindustan times 15Th August 2016
[3] Art Judicial shelter by vikran Pachnnda  IN India law journal
[4] Livemint Epaper Dated 31october,2017