Time to Stop Judiciary's Assault on Executive & Legislature
JUNE 01, 2016
By Naresh Minocha, Our Consulting Editor
"THE tradition of the Bar is never to tell a judge that he is wrong even when he is. A lawyer has to respectfully guide the judge out of his error," stated the then Law Minister (LM) Ram Jethmalani in his letter dated 20th July 2000 to Chief Justice of India (CJI), Justice A.S. Anand.
Mr. Jethmalani tried to adhere to this tradition as a Cabinet Minister while clarifying that no convention existed for consulting CJI is the matter of appointment of Chairman of Monopolies and Restrictive Trade Practices Commission (MRTPC).
CJI reiterated his contention that consultation was the convention and he considered this issue as "one of principle" . And both the legal luminaries thus let the issue simmer into an unprecedented letters war.
This duel reflected the growing tension between the Judiciary and the Executive. This case was different from earlier bouts of friction between the Judiciary and the Executive that surfaced periodically right from the Raj days.
LM-CJI face-off has direct relevance to the latest concern voiced by President Pranab Mukherjee, Finance Minister Arun Jaitley and other leaders over unbridled judicial activism.
Time is now ripe to take the turf war between the Judiciary and Executive-Legislative (JEL) duo from endless public discourse to its dignified resolution. This is a pre-requisite for fulfilling national dream for Acche Din for all.
Before discussing the way forward, we need to recollect more about LM-CJI face-off to put the issue in perspective. The show-down led Prime Minister Atal Bihari Vajpayee into seeking resignation of Mr. Jethmalani.
Mr. Jethmalani suffered additional humiliation as he denied permission to place certain documents in Parliament to explain his resignation. His right as an MP was thus short-circuited to ensure that the public didn't view the sordid aspects of legal system. He was accused by the Opposition of violating Official Secrets Act, a charge that he ridiculed with panache.
He told Parliament: "While I am a supporter of judicial activism, and all my life I have fought for the independence and glory of the judiciary, I will not surrender my executive privilege to please a judge even if he happens to be the highest."
Mr. Vajpayee, on the other hand, appeased the Judiciary. He stated: "The government believes in promoting a harmonious relationship between the different wings of the State. Without going into the question of the correctness of any possible view involved on the issues on which Shri Jethmalani corresponded with the Hon'ble Chief Justice of India, I was of the opinion that even the difference of opinion between the Chief Justice and the Law Minister should not create any imbalance in the harmonious relationship. Thus, in order to ensure that this harmonious relationship is not only maintained but strengthened, I exercised my prerogative and asked Shri Jethmalani to resign."
Mr. Jethmalani's exit from the Cabinet marked a new low in the perpetually tense relationship between the Judiciary and the Executive. A section of the judiciary has since then taken it as its constitutional duty to dabble into policy and governance turf ostensibly to safeguard fundamental rights of citizens.
The dubious credit for emboldening the Judiciary to domineer the Executive therefore goes to Vajpayee Government. The successor UPA regime also failed to muster political will to tell the Judiciary to not venture deep into governance domain.
The Executive has been taking the Judiciary's rap on its governance knuckles with occasional faint murmurs of disparagement. Judicial-NGO activism has inflicted deadly blows to the citizen's right to work and right to earn livelihood. The notable instances include Vedanta's Bauxite mining project in Odisha, policy freeze on genetically modified food crops, stay on construction of several hydro-electric projects in Uttrakhand, curbs on plying and registration of diesel vehicles in Delhi and levy of environment compensation charge (ECC) on commercial vehicles that pass through Delhi.
It is here apt to quote Lok Sabha ex-Speaker Somnath Chatterjee. Delivering Dr. K. N. Katju Memorial Lecture titled ‘Separation of Powers and Judicial Activism in India' delivered during April 2007, Mr. Chatterjee stated: "Nowadays, there are umpteen instances where judiciary has intervened in matters entirely within the domain of the executive, including policy decisions."
The most heartening fact is that such instances have been ridiculed and disapproved by both sitting and retired judges of the Supreme Court and high courts. Even leading advocates have been at the forefront of finding fault with waywardness among judicial activists.
Notwithstanding this, a section of judiciary remains indifferent to sage advice and analysis of their seniors from legal fraternity. The Apex court should overcome this problem by laying a comprehensive standard operating procedure (SOP) for admission of PILs by all courts.
Mr. Chatterjee quoted CJI J.S. Verma as once saying in the nineties that "Judiciary has intervened to question a ‘mysterious car' racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for the Judge's pool, monkeys capering colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic, etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance."
A quirky case in point is Supreme Court extending the definition of fundamental right to life to the right to sleep (in a public place) in February 2012. This interpretation of the Constitution was done by a SC bench in its ruling that Delhi Police had violated this right while acting against a supposedly sleeping crowd at Baba Ramdev' Rally in Delhi. The bench took up this minor but media-hyped incident as a Public Interest Litigation (PIL) on suo-moto basis.
This compelled the then CJI Kapadia into admonishing the judges on judicial activism. In his lecture on ‘Jurisprudence of Constitutional Structure' delivered during August 2012, he stated that judges should not govern the country. They should not frame policies. They should apply "enforceability test" on the verdicts such defining right to sleep as a fundament right.
He reportedly posed: "Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability."
In the PIL-driven verdicts, judges have repeatedly given overwhelming importance to fundamental rights such as right to life and right to practice any faith to stall projects and policies. Such verdicts hardly take into account the right to earn one's livelihood as an extension of right to life. The Judiciary is, however, very generous in interpreting right to fresh air as right to life to throttle economic activities. The Judiciary does not take a holistic view of different articles of the Constitution while delivering PILs-influenced judgments.
The judiciary has become de facto supreme arbiter of policies, projects and canons of governance. Judicial activism is both due to certain judges' self-belief in their Lordship and due to bad governance and Legislative stalemates.
The Constitution, however, does not provide for an opportunity for any organ of democracy to take up the work of other organs, which are found wanting in fulfilling their responsibilities.
Keeping this perspective in view, consider now Mr. Jaitley's outburst against the Judiciary's highhandedness. On 11th May, Mr. Jaitley told Rajya Sabha: "The manner in which encroachment of legislative and executive authority by India's Judiciary is taking place, probably, financial power and budget-making is the last of the only powers that you have left."
In an obvious reference to Supreme Court's four recent verdicts on drought and allied issues, Mr. Jaitley said: "we have already passed the Appropriation Bill. From where do I get this extra money outside the Appropriation Bill to comply with this direction of the Supreme Court? Can't you see, step by step, brick by brick, the edifice of India's Legislature is being destroyed?"
This is perhaps most severe indictment of the Judiciary by a Union Minister, who is perceived by many as de facto No.2 in Modi Cabinet.
Two days later, echo of Mr. Jaitley's concern reverberated in Rajya Sabha during the course of farewell speeches given in honour of 53 retiring members.
According to a PTI news, Samajwadi party leader Ram Gopal Yadav said Parliament members are concerned over "encroachment" on legislature's rights by judiciary. Constitution, he said, has given Parliament the right to enact laws and make budget.
He suggested that the government should discuss the issue during the monsoon session of Parliament. BSP Chief Mayawati endorsed Mr. Yadav's stance. She stated: "We would have to look within" why judiciary is taking advantage, she said. "We should act unitedly and especially on important issues, we should rise above political affiliations."
Mr. Jaitley articulated his views against judicial activism on 16 th May. He reportedly stated that judiciary must draw its own "Lakshman rekha" and not take decisions, which fall in the domain of the Executive.
BJP's arch rival Congress should also rise above petty politics and support Modi Government in resolving the issue of Judiciary's dominance over the Executive and Legislature. It is here pertinent to remember that Mr. Jaitley's predecessor, P. Chidambaram had voiced anguish on this issue in December 2013 when UPA was in power.
Mr. Chidambaram rightly pointed out that the country cannot achieve sustainable growth unless powers of the Executive to govern are restored. He reportedly stated: "Governance cannot be taken away from executive. Parliament must make laws to support Executive decisions. More so, judicial institutions cannot take over governance. We have to rediscover balance among the institutions and we have to reassert balance between reform, development and inclusiveness."
The enormity of negative impact of judicial activism can be appreciated by acknowledging the fact this issue figured twice in President Pranab Mukherjee's speeches in April this year.
Inaugurating the 4th ‘Retreat of Judges of the Supreme Court' at Bhopal on 16th April 2016, Mr. Mukherjee cautioned: "Judicial activism should not lead to the dilution of separation of powers which is the constitutional scheme. Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others. The balance of power between the three organs of the state is enshrined in our Constitution. The Constitution is supreme. The equilibrium in the exercise of authority must be maintained at all times. The exercise of powers by the legislature and executive is subject to judicial review. However, the only check possible in the exercise of powers by the judiciary is self-imposed discipline and self-restraint by the judiciary itself."
All such observations should motivate Prime Minister Narendra Modi to take steps to resolve JEL row. He should take a decisive call to review and redraw precisely the domains of Legislature, Executive and the Judiciary.
Let this issue be resolved by a commission on review of grey areas in the Constitution. The first such panel named National Commission to Review the Working of the Constitution in March 2002, did not delve deep into the turf war between the Judiciary, Executive and Legislature.
NCRWC noted that judicial activism has not gone too well with groups of democratic theorists. They object to the kind of judicial activism which has tended to turn social and political processes to legal processes and obliterating the then line of demarcation between interpretation and adjudication and exhibiting an ever eager tendency to intervene in the governing process.
As put by NCRWC, "Constitutional adjudications do have an inevitable legislative element. Judges need great wisdom and restraint in wielding this great judicial power lest they erect their own predilections into principles."
Initiative to prevent judicial activism turning into governance and legislative adventurism should be No. 1 item on the National Agenda. This initiative is required to help the Executive regain confidence in managing growth challenges and worsening law and order problems.
Moreover, judicial activism has cast a dark shadow over the investment climate. The companies today live in chronic fear of PIL-led judicial disruption of their businesses that result in loan defaults. Many manufacturing companies prefer to import or outsource indigenously products rather than setting up production units. Add to this risk of job losses and countless opportunities foregone in the realm of employment and wealth generation due to NGO-Judicial activism.
Mr. Modi, who likes to duck contentious issues, might like to draw inspiration from what late Govind Balabh Pant, Home Minister, stated in Parliament while elucidating Constitution (Fourth Amendment) Bill during March 1955.
Mr. Pant stated : "While in every way upholding the dignity and respect that is due to the Supreme Court, it becomes the duty of the executive to devise suitable means in order to bring the two together, so that the main purpose for which the two exist, may be fulfilled."
This property-related amendment as earlier constitutional amendments relating to land reforms (Incorporation of Clause 31A & 31B) were done by Nehru Government to rein in judiciary to promote inclusive socio-economic growth.
Mr. Modi does not have to copy Nehru. He can settle JEL turf issue by setting up a Committee of five or seven distinguished holistic-minded persons with razor-sharp terms of reference.
Let this panel lay action plan for harmonious JEL working to provide work opportunities for all, water for all, food for all, housing for all, healthcare for all, energy for all, speedy justice for all, transparency for all and freedom of expression for all.
The Committee should be asked identify all major good and bad cases of judicial activism to draft SOP on handling PILs. The menace of dubious PILs clogging courts can be reduced if governments and all other entities set up or improve grievances/ complaints resolution system. No PIL should be entertained till the petitioner has received time-limit specified result from this system.
The committee should consider recommending a mandate for judges to compare the rights of vocal individual(s) and the rights of silent community before giving verdicts on PILs. It should recommend a mechanism by which judges base verdicts on holistic approach rather than narrower focus pushed for by PIL petitioners.
To reduce scope of PILs on policies, laws and projects, the committee should consider recommending advance ruling by the judiciary. This would go a long way in improving investment climate.
To deter NGOs from filing dubious PILs against projects and policies, the committee should recommend mandatory transparency norms for such PIL litigants. It should also specify deterrent punishment for NGOs that PILs filed at behest of corporate rivals or foreign donors.
To improve TOR, the Government can issue a draft notification on constitution of the proposed committee and invite comments from the public.
To drive home the rationale for proposed committee, it is apt to recollect what late S. N. Dwivedy, renowned freedom fighter and author said while participating in discussion on Constitution (Fourth Amendment) Bill in Rajya Sabha during March 1955.
Mr. Dwivedy stated: "In a democratic set-up, there is no conflict between the Judiciary and the Legislature. Judiciary, Legislature and Executive are component parts of our democracy. We must, therefore, create conditions when all these three component parts must move in a clear direction, and one direction, I would also say. But that has not been so. And why? The difficulty arises not because of this Article or that Article (of the Constitution), not because of some words here and there but because we are not very clear regarding our goal."