J. S. Verma, Former Chief Justice of India
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express
The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.
Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.
A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.
I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.
Legislative functions
The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.
The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.
Jharkhand order
The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.
It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.
‘Cash for query’ case
This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.
The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.
The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.
Judicial review of Article 356
The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.
In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.
The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.
The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.
The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?
The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.
For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.
Conclusion
The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.
Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24
Saturday, April 07, 2007
‘Judicial activism should be neither judicial ad hocism nor judicial tyranny’
J. S. VERMA, Former Chief Justice of India
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in 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.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in 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.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Tuesday, April 03, 2007
Ban on sex determination needed: Centre
[ 27 Mar, 2007 0309hrs ISTTIMES NEWS NETWORK ]
MUMBAI: The Union of India told the Bombay high court (HC) that there was no question of lifting the ban on pre-natal sex determination tests. The government was responding to a public interest litigation filed by a Mumbai couple seeking relaxation of the ban. In an affidavit, Sushma Rath, under secretary, Union ministry of health and family welfare, said that sections of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002, that enforced the ban, was in accordance with the law. The Act, the affidavit said, was enacted by Parliament to check the rising incidents of female foeticide. "The government of India, anticipating a catastrophe in the form of severe imbalance in the male-female ratio, has passed the Act," said the affidavit, pointing out that the sex ratio in the country of the population in the 0 to 6 age group was adversely against the girl child. The infant child ratio has come down from 945 (for every 1,000 male children) as per the 1991 census to 927 in 2001. The problem was especially bad in affluent states like Punjab (798), Haryana (819), Chandigarh (845), Delhi (868), Gujarat (883) and Himachal Pradesh (896). The couple, who have two girls and now want a son, have questioned the constitutional validity of the ban. They have sought a relaxation of the ban for couples who already have one child. The affidavit, however, said that the ban was a policy decision of the government. “Balancing the sex ratio in the society is more important than balancing the sex ratio within the family," the affidavit affirmed. "Any imbalance in the sex ratio of the society will adversely affect the overall well-being of women in the society." The PIL is scheduled to come for hearing later this week.
MUMBAI: The Union of India told the Bombay high court (HC) that there was no question of lifting the ban on pre-natal sex determination tests. The government was responding to a public interest litigation filed by a Mumbai couple seeking relaxation of the ban. In an affidavit, Sushma Rath, under secretary, Union ministry of health and family welfare, said that sections of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002, that enforced the ban, was in accordance with the law. The Act, the affidavit said, was enacted by Parliament to check the rising incidents of female foeticide. "The government of India, anticipating a catastrophe in the form of severe imbalance in the male-female ratio, has passed the Act," said the affidavit, pointing out that the sex ratio in the country of the population in the 0 to 6 age group was adversely against the girl child. The infant child ratio has come down from 945 (for every 1,000 male children) as per the 1991 census to 927 in 2001. The problem was especially bad in affluent states like Punjab (798), Haryana (819), Chandigarh (845), Delhi (868), Gujarat (883) and Himachal Pradesh (896). The couple, who have two girls and now want a son, have questioned the constitutional validity of the ban. They have sought a relaxation of the ban for couples who already have one child. The affidavit, however, said that the ban was a policy decision of the government. “Balancing the sex ratio in the society is more important than balancing the sex ratio within the family," the affidavit affirmed. "Any imbalance in the sex ratio of the society will adversely affect the overall well-being of women in the society." The PIL is scheduled to come for hearing later this week.
Judicial activism and democracy
By Anil Divan ,The Hindu April 2,2007
The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.
LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
High-water mark
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)
The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.
LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
High-water mark
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)
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