Usurpation of executive and legislative powers by the Indian higher judiciary



by Mathews J. Nedumpara

     The front page of the Times of India dated 1st April, 2017, which I have in my hands now, has almost 80% covered by Court news with the caption “Highway liquor vends, bars must close from today: Supreme Court”, being the most prominent heading.  On its right “Won’t apologize if work not restored: Justice Karnan to Supreme Court”, followed by another three Court-related news items, including the caption “No early Supreme Court hearing in Ayodhya case”.  What is said about 1st of April, 2017 could be true about all Tuesdays and Saturdays, for, on Mondays and Fridays, the Miscellaneous Days of the Supreme Court, it decides matters concerning the public at large, often in hearings which could last for a few minutes.

     Thirty three years ago when I started my legal profession, I was a far more enthusiastic reader of newspapers than I am today.  In those days, what most of the newspapers carried was news about decisions which the Government took and of discussions in the Parliament and Legislative Assemblies.  The change that has come in three decades is sweeping and is indicative of who the true rulers of the country now are.  Today India is ruled by Judges of the higher judiciary; Parliament has been pushed to the sidelines; virtually all executive and legislative decisions on policy matters are taken by the Supreme Court and High Courts.  The Constitution did not provide for the same.  The essence of the Constitution is that decisions concerning the public at large ought to be taken by the elected Government which is responsible and accountable to its subjects, the citizens, the concept of parliamentary supremacy.  Today parliamentary supremacy is a myth; it has been substituted by supremacy of the judiciary.  One might wonder how that could happen when the Constitution did not provide for judicial supremacy, a governance by the Judges, which has meant a new terminology called “Judgeocracy” to be evolved.

     It was the concept of PIL which proved to be a magic wand and which allowed the Constitution to be rewritten, not by an amendment by the Parliament but by judgments rendered in PILs.  The two big news items of this week are the Supreme Court banning liquor vends within 500 meters of National and State Highways from 1st April, 2017 and banning sale and registration of vehicles which do not meet BS-IV emission norms.  I being a teetotaler and one who privately love consumption of liquor to be drastically reduced; so too one for whom a stay in Delhi, the most polluted city in India,    a nightmare, in the heart of my heart, could be welcoming the judgments.  But the question is, do Courts have the jurisdiction to pass orders, as the instant two referred to above, and the likes which are in the realm of executive and legislative policy.  I am sure those who hail the judgments of the Supreme Court in Kesavananda Bharati, Judges-2, Judges-3 and the NJAC cases, which meant giving legitimacy to substitution of the views of the Hon'ble Judges, a few learned men in robes, could be of a strength of 5, 7, 9 or 11, would not be able to give a jurisprudential justification for substitution of the views of the Parliament exercising its constituent power, which reflects the will of the people.  

     The order of the Supreme Court banning liquor outlets, including that of Star Hotels, across the country has meant not merely loss of revenues to the State Governments and Union Territories running into thousands of crores of rupees, thereby unsettling their budgets, but has also rendered thousands of people jobless, nay, even certain towns like Mahe, a Union Territory, where liquor is relatively cheaper on account of variation in tax.  Mahe, a small island sandwiched between Kannur and Kasaragod Districts of Kerala, is a ghost town today.  The orders of the Supreme Court are rendered without hearing the parties affected and thus rendered null and void in law.  It is a fundamental principle of jurisprudence that if a judgment or order of a Court is one rendered without hearing the parties affected, it is a nullity; it never ever existed in the eye of law.  Unfortunately, orders of the Supreme Court in PILs like the instant one and the likes, which are innumerable, for instance, banning of illegal mining, which affected the entire steel industry and rendered thousands homeless, shaken the economy, rendered many industrial towns as ghost towns, are all null and void, being rendered without hearing the parties adversely affected.

     It is not because the Judges are not informed of the inherent limitations of their jurisdiction, in the case of the Supreme Court, under Article 32 of the Constitution, which could be invoked only for enforcement of fundamental rights.  The Supreme Court hardly entertains a petition under Article 32 and those who approach it are often relegated to the High Court concerned.  However, at the same time, it very liberally entertains petitions styled as PIL where no violation of any fundamental right is alleged, not even violation of any legal right at all.  The Supreme Court has been allowing people who claim themselves to be “Centre for Public Interest Litigation” and the likes, who complain no violation or any fundamental or legal rights, who do not represent any “person aggrieved” who cannot, out of their poverty, illiteracy, ignorance and other disabilities, approach the constitutional Courts for enforcement of his fundamental rights, to invoke its jurisdiction merely claiming that they are there because the ‘basic structure’ of the Constitution is infringed.  Petitions of those who assert, contrary to the elementary principle that if you are not a ‘person aggrieved’ you are not entitled to any remedies in law under Article 32 and if you are not entitled to any remedy you have no right to institute a case in a Court, are entertained as PIL!  It is the duty of the learned Attorney General, the Solicitor General and the Advocate Generals to question the locus standi of such Petitioners.  But I have not come across a single case where the learned Attorney General, the Solicitor General and the Advocate Generals have asserted that they alone are the custodians of public interest and none else. In the NJAC case too, the locus standi of the Petitioners challenging the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 was not questioned and that meant the will of the people reflected in the Acts of Parliament, ratified by 21 State Legislatures, being thrown to the dustbin and the collegiums system of appointment of Judges to the higher judiciary being restored/revived.

     The critics of PIL, and I have no hesitation to admit that I too undoubtedly am a critic, have always attributed the PIL as a means devised by the Supreme Court to gain public confidence, which took a great beating during Emergency when the Supreme Court in ADM Jabalpur v. Sivakant Shukla, AIR 1976 SC 1207, held that during Emergency fundamental rights stand abrogated.  The collegiums system of appointment of Judges has meant many people raising their eyebrows about the democratic legitimacy of those who were appointed as Judges of the Supreme Court and High Courts; so too of corruption, nepotism and malpractices and the higher judiciary being monopolized by a few families, the elite class of lawyers and Judges.  Many believed that Judges are on an overkill of populism, like ban of liquor, unwavering stand against polluting vehicles, sermons on the mount against social evils, lamenting the cause of farmers who committed suicides in large numbers, etc.  But the question is, will this window-dressing be sufficient to protect the majesty and prestige of the institution of judiciary?  The real step to protect the sanctity of the institution is to keep it away from corrupting factors and make it accessible to the common man.  Trenching into the domain of the executive and the legislature is fraught with dangerous consequences, for, it would only mean opening of the Pandora’s Box.  The image of a Court or a knight errant is in undoing injustice everywhere and doing great deal of public good; acting in substitution of the executive and legislature cannot be maintained for long; it would lead to greater disappointment and frustration of the masses and the very destruction of the institution itself.