By Dr S.Saraswathi
(Former Director, ICSSR, New Delhi)
There is no institution in the country which is using and wielding its authority without restrictions like the Supreme Court. Itssupremacy in its sphere is so well established that it is even in a position to expand its wings into non-judicial space.It isa result of rapid growth of litigations involving governments, constitutional bodies, political institutions and oganisations constantly requiring its services. As in the story of the proverbial mediator, there seems to be a danger of Supreme Court appropriating the share of litigants unless knowledge and sense of law, due process, sense of justice and fair play pervade public life.
In the United Kingdom, Parliament has much greater powers than the judiciary, but the Indian Constitution has given to the judiciary the important power to review parliamentary laws and even strike them down if they violate the Constitution. Over time, occasions to use this power by the judiciary have been increasing leading to subtle intrusion into the domain of the executive and other government bodies by directives and advices sought and unsoughtand helped it to spread its wings perhaps unconsciously. Judicial overreach is auniversalphenomenon.
Supremacy of the Supreme Court has certainly yielded solutions to some problems. For example, the question of declaring President’s rule in a State, which was originally based on “subjective” satisfaction of the President, can now be reviewed by the SC on procedural grounds. That the majority of a political party is to be determined on the floor of the House and not by collection of signatures or parade of legislators is a judge-made law applied in several cases of defection.
And so, there is reason to look upon the SC of India as one of the most powerful courts in the world. This development, which remained subdued under powerful regimes when the concept of “committed judiciary” tied its hands, is regaining its strength in this pandemicera full of challenges to several authorities. A tendency has also grown in the country to transform every political issue into a legal issue and knock the doors of courts with affidavits and witnesses.
This may have tempted and also compelled the judiciary to intervene in matters without convincing legal reason. At one stage of farmers’ agitation over Farm Laws, the apex court stayed implementation of the laws and ordered constitution of a committee of experts to negotiate between the Government and farmers’body. The move had the effect of seeking political rather than legal settlement, and though coming from the apex courtleft the legal issue unsolved to erupt again, but enhanced the status of the judiciary politically.
A developmentcoming to the surface in this road for supremacy is the differences within the judiciary over its own powersand role. Some hold the view that the government is the authority to take policy decisions on the pandemic, but subject to court review if it infringes on the constitutional rights of the people. Soon after a verdict of a Supreme Court Bench on Vaccine Policy which led to changes in the policy, another Bench observed that constitutional courts should be restrained in policy decisions and that it would consider setting out norms.
Several High Courts and Supreme Court were seized with cases regarding oxygen supply and vaccination for Covid-19. Allahabad High Court passed directions to Uttar Pradesh government on management of the pandemic in the State and passed adverse observations against the government. Hearing a plea filed by UP government against High Court directions, a bench of the SC said there was no doubt that the intention of the court was to improve the situation, but said that the issue was whether interference by court was at all needed during the period of crisis which should be left to governmentsandexperts. The SC also asked High Courts to exercise restraints in passing orders that are incapable of being implemented.
Policy decisions are taken by the government after consideration and necessary discussions on all aspects of an issue, but not just on the basis of petitions, demands, protests, and threats. These may be democratic rights to be protected by the judiciary, but cannot become the basis for governmental decisions. Dissentingvoices have a platform in Parliament and need not approach courts every time or gather on streets.
Oxygen or vaccine policy, for instance, is not a matter of maintaining equality between receivers to be ensured by law and justice, but one offighting the pandemic on the field in the best possible manner.
State governments and State parties generally suffer from political compulsion to adopt a narrow and State-centred view. This places the responsibility on the Union Governmentto handle this as a national problem halting the speed with which the judiciary has been expanding its domain.
So also, clamping lockdown and announcing relaxationshave to be done by the government which has and can obtain required datafrom the field. Judicial courts are not in a position to decide the need for lockdown or the time for opening shops, temples and schools. Several pleas are filed in courts by citizens and organizations on these issues.
Courts have to refuse to take up such non-legalissues relating to safety and security of all people threatened by disasters and calamities, including war and pestilence. Judiciary’s supremacy has to be limited to the sphere of law and justice, and in that sphere, it should be supreme.
Control of SC over High Courts and functioning of subordinate courts is becoming more and more visible showing both differences in interpretation of law as well as rift in the judiciary.Supreme Court’s role as the guardian of the rights of common citizens has been asserted so often that it is not under dispute. While fulfilling this role, the SC came heavily on the lapses in managing Covid-19 which had led to loss of lives while dealing with the case of shifting a journalist from UP to Delhi for medical treatment. On a bail application that had not been listed for more than a year before the Punjab and Haryana High Court, the SC noted that denial of hearing was an infringement of right and liberty assured to an accused.
Thus, the course of judiciary is a series of allegations and counter-allegations. Subordinate courts come heavily on the lapses of local bureaucracy; high courts flay the State governments for lapses; SC makes adverse remarks onHigh Courts and subordinate courts; SC also gives directions tothe Central government on policies and implementation. Isit a sign of the judiciary tryingto reinforce its supremacy and power? Or is judiciary taking advantage of the failure of Parliament to conduct its business?
Over-burdened judiciary is, to some extent, judges’own makingas they are taking up more and more cases involving public authorities while pendency of cases in lakhs is staring at their face. They have to shed their unnecessary load in order to retain their supremacy in law and justice. We already have a Parliament unable to exert its full legislative power because of unruly behaviour of some members. Judiciary should be saved for judicial work. — INFA