Awhile ago, a headline in the Hindustan Times, ‘If citizens cry for help, we can’t keep mum, retort judges’ (May 4), brought into sharp focus the ongoing controversy over ‘judicial over-reach’. It is undeniable that the judiciary has been solely entrusted with the duty of testing the constitutional validity of laws. Similar powers of review rest solely with the judiciary to test the validity of administrative actions. Controversy arises when there is perceived encroachment of one wing of the State into the space allocated to the other. The genesis of the controversy can be traced to the birth and growth of the public interest litigation (PIL).
Originally, procedural laws required that any person seeking relief against infringement of his rights must move the court for redress himself. The remedy was personal to the applicant. It was Justice Krishna Aiyer who conceived of the notion of “little Indians in large numbers seeking remedies in courts through collective proceedings”. Developed further by Justice Bhagwati, access to justice by way of PIL instituted bona-fide at the instance of public spirited individuals became a reality for the weaker sections of the community. It is the primary duty of the executive wing of the State to implement laws that benefit citizens and to prevent their misuse. It is a matter of regret that the State machinery has been inactive on an extensive scale in this area. When this inaction resulting in gross violation of citizens’ rights was brought to the attention of the judiciary, it stepped out of its traditional adversarial role into an investigative mode.
Without a well-structured investigative machinery at their disposal, the courts had to innovate. They appointed commissioners to investigate, formed committees to deliberate remedies, appointed amicus curiae to assist the court, and directed national scientific institutions to report on scientific matters. Based on these, the courts proceeded to pass wide-ranging orders and directions. These were judicial orders to be obeyed as if they were decrees of the court.
In the process, the judiciary has intervened in matters perceived to be within the domain of the executive, including policy decisions. Courts have, for example, passed orders regarding the criteria for nursery admissions, facilities to be provided by hospitals, conditions of roads and other municipal facilities. Is the court to blame for the sad state of affairs it tries to rectify? Certainly not. However, while recognising the tremendous efforts made by the judiciary in acting in public interest and without in any way detracting from the results achieved, there are a few concerns.
First, should judicial orders replace what should normally be conducted by administrative authorities? The argument that one wing of the State may step in to rectify the deficiencies of another is fraught with serious jurisprudential problems.
Second, there is a real danger that the activism of the courts may aggravate the inactivism of the authorities. Today, inconvenient decisions are left by the executive for the courts to take. Extensive use of judicial powers in the administrative field may well, in the long-run, blunt the judicial powers themselves. This is not a healthy situation.
What then is the solution? The task of the court should be to compel the authorities to act and to pass appropriate executive orders rather than substitute judicial orders for administrative ones. They must be told how their duties are to be properly discharged and then commanded to do so. For this, they must be held accountable to the court.
As for the issue of perceived intrusion of the judiciary in legislative areas, the courts have, in many instances, pointed out deficiencies in the law for the legislatures to take note of and to rectify. The courts have, in some cases, gone to the extent of pointing out that a legislation suffers from infirmities that, if not removed, would render the legislation invalid. By and large, legislatures have taken heed of the observations of the courts and taken corrective action. Exceptions, such as dealing with the rights of women against sexual harassment in the workplace, however, remain.
A third area of apparent conflict between the judiciary and the legislature is furnished in the Jagdambika Pal’s case. In this case, the Supreme Court, without discussing the legal basis for interference, directed a special session of the Uttar Pradesh assembly to be summoned and specified the only agenda item for the session. On a subsequent day after the special session had been held, the Supreme Court closed the case and observed: “Keeping any attendant issues alive in the form of the writ petition before the High Court would now be not conducive to political peace and tranquillity, as also overall harmony.” In a similar situation relating to the Jharkhand assembly, the Supreme Court again passed similar interim directions, without discussing legal issues. Later when these directions had been complied with, it dismissed the petition as infructuous with the observation “though certain other issues of constitutional significance are raised which may be left open for decision in an appropriate case”.
The limits of the exercise of judicial powers have to be clearly laid down and this can be done by the judiciary itself. In the light of numerous judicial orders passed in PILs by the courts, the time is ripe for the apex court to revisit the constitutional issues on jurisprudential basis not adverted to or left unanswered so far. The judiciary should hold the scales of justice by putting itself on the scales.
Dipankar P Gupta is a Senior Advocate and former Solicitor General of India.