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Blurring lines between Judiciary and Executive

  • Category
    Polity
  • Published
    4th Nov, 2019

Madras High Court is hearing a PIL which asks the court to declare the linking of Aadhaar with a government identity proof, as mandatory for registering email and social media accounts.

Issue

Context

Madras High Court is hearing a PIL which asks the court to declare the linking of Aadhaar with a government identity proof, as mandatory for registering email and social media accounts. A series of such hearings/judgements suggest a trend that courts have continually expanded the scope of issues considered in PILs. These trend warrant critical questioning.

Background:

  • Madras High Court’s recent Pubic Interest Litigation (PIL) hearing shows that courts are not only considering questions of law, but have started to deliberate on policy questions with wide-ranging impact ( like; Should Aadhaar be linked with social media accounts?)
  • This suggests a growing trend of populist impulses of judicial overreach by the courts.
  • Under the ‘doctrine of separation of powers’, the political system of a nation divides its power between legislature, executive and judiciary.
  • Article 50 under directive principles of state policy separates judiciary and executive.
  • In India, ‘separation of functions is followed, and not of powers’ and hence, the principle is not abided in its rigidity, as in the US. Instead, India’s separation of the three organs is based more on the principle of ‘checks and balance’.
  • While a balance of power check aims to avoid concentrating too much power in any one body of government. It also generates tension between the three arms of government.

Judicial Review

Judicial Activism

Judicial Adventurism/overreach

Judicial review is a type of court proceeding in which a judge reviews the legality of a decision or action taken by a public body. Judicial review challenges the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Judicial activism denotes an active role taken by the Judiciary to dispense social justice. Instruments like; Suo-moto cases, PIL, new doctrines etc., which have no constitutional backing, are actively used to fill in legislative gaps.

Judicial Overreach/ adventurism refer to an extreme form of judicial activism. It is when judiciary crosses the territory pertaining to Legislature or executive; thus disrupting the balance of powers between the three organs of the government.

  • In case of judicial overreach, court’s often follow a populist impulse and over indulgence in matters of popular interest. It leads to grandiose executive judgements dealing with aspects of the country’s governance.
  • For example, in the ‘N. Godavarman versus Union of India’ case, the Supreme Court defined a ‘forest’ in the absence of a definition in the Forest Act and, in doing so; it took over the governance of the forests in India."
  • Examples of judicial overreach in matters of popular interest:
    • Imposition of patriotism: Mandatory playing of National Anthem in cinema halls.
    • Proactive censorship: Directing CBFC to re-certify the movie Jolly LLB 2.
    • Cancellation of 2G telecom licences: Directing allocation of natural resources through auction only.

Critical analysis:

Judiciary’s Argument

  • Article 142 of the Constitution makes Judicial Activism It allows the Supreme Court to make such order as is necessary for doing complete justice" in a case.
  • Courts often come to their rescue arguing that they over-indulge because the legislature and executive do not do their job; that judiciary has to step-in to fill in the vacuum of a governance deficit. Following cases are pointed as examples where court intervention has delivered larger social justice (as directed by article 142):
    • Union Carbide/Dow lawsuit (settling civil claims against Union carbide, for the Bhopal gas tragedy).
    • Taj Trapezium Case (restricting polluting industries around the Taj Mahal area).

      Rule of locus standi

      Under Article 32, a writ can be issued if and only if it hampers or affect the fundamental rights of an aggrieved party or a person; i.e. for redressal, a person has to approach to the court and no other party or person can appeal on his behalf. Rule of locus standi requires the party or person to demonstrate to the court his connection to the case.  

      Public Interest Litigation (PIL)- Relaxation of rule of locus standi

      PIL means a legal action initiated in a court of law for the enforcement of public interest or general interest by which a party’s legal rights or abilities is affected.
      Rule of Locus standi gave way to the emergence of PIL in India. While rule of locus standi required the party to establish his connection to the case, PIL can be used by anyone on the concerned party’s behalf, as the affected party may not be aware of their rights or may not be financially strong enough or as the case may be.

      PIL further relaxed (misused)
      PIL was a revolutionary concept aimed at solving the grievances of those who go unnoticed or are un-represented. However with the passage of time, PIL has been used for corporate gain, political advantage or personal interest. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions.

Cost of Judicial Overreach

  • However, Indian history is also replete with examples where the costs of such judicial interventions have outweighed their gains. Following are a few examples:
    • PILs filed by M.C. Mehta led to Delhi’s urban transformation. This also resulted in large-scale deindustrialization of the city, as “green judges" ordered the relocation of 168 large industries, rendering thousands jobless.
    • Similarly, Delhi’s vehicular pollution case led to the conversion of all public transport vehicles to CNG from diesel or petrol, resulting in a sudden drop in public transport supply and an increase in private vehicles.
    • SC ruling on PIL which banned the sale of liquor at retail outlets within 500m of any state/national highway. For state governments, this led to massive loss in revenue collection. It resulted in loss of business for hotels and restaurants. It indirectly resulted in loss of jobs for enterprises in the supply chain.
  • Misuse of PIL: According to a World Bank working paper, claimants of PIL from advantaged classes have a 73% probability of winning a fundamental rights claim, compared to 47% for non-advantaged classes.
  • Hence it seems that judicial overreach may have a disproportionately large financial burden on state exchequer as well pressure on judiciary that amounts to pendency of cases later.
  • Procedural supremacy has suffered, and this creates doubts over the competence of our courts in assessing policy interventions.

Brief history of how roles of the executive and judiciary have got blurred?

  • The first constitutional amendment (1951) started the long-drawn battle between the executive and the judiciary.
  • It inserted Ninth Schedule to protect land reform and other laws present in it from the judicial review. It set the precedent of amending the constitution to overcome judicial pronouncements to implement the programmes and policies of the government.
  • The judiciary fought back in ‘Golaknath vs. State of Punjab’ Government retaliated through the 24th amendment.
  • Finally, it was settled in the ‘Kesavananda Bharti vs. State of Kerala’ case that amendments which tend to affect the 'basic structure of the Constitution' are subject to judicial review
  • But to gain popular legitimacy, the SC responded by mimicking Government’s populism;
    • The rule of locus standi was relaxed;
    • technical barriers were removed;
    • evidence could be gathered by a court-appointed commission;
    • lax procedural requirements.

Way forward

As the doctrine of separation of powers is not codified in the constitution, the judiciary must evolve a set of guidelines that lays down a procedure in consonance with the executive so that it does not delve into issues which are beyond its domain of expertise. If at all such a necessity arises, the mandate of the Supreme Court’s recently constituted in-house think tank, ‘Centre for Research and Planning’, could be enlarged to encompass the necessary academic rigour required for issues related to governance.

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