Last week, the Attorney General of India, KK Venugopal, voiced an unpleasant but a pertinent issue before a Constitution Bench of the Supreme Court. He said:
The government of the day respects the judiciary and does not want confrontation with it. If you ask jurists, many of them will say the court has taken over executive powers.KK Venugopal, AGI
Elaborating further, the Attorney General said the Supreme Court has introduced as many as 30 positive rights into Article 21 and that these rights cannot be enforced because of the problems faced by the country.
Many spirited orders of the Supreme Court in the recent past make it amply clear that the judiciary is indeed taking over the realm of the executive — which is blatantly unconstitutional and undemocratic.
Around the globe, especially in countries that have recently-adopted a constitution or a constitutional amendment containing a bill of rights, constitutional reform encourages active or passive judicial review. Liberals and activists cheered these messianic courts which, according to popular narrative, filled the voids created by executive/legislative apathy.
This is equally true in India, where as rightly pointed out by the Attorney General, we have bicameral rights –fundamental rights provided in the Constitution and an ever-expanding set of judicially affirmed rights which are not explicitly guaranteed by the Constitution.
The originalists and the purists are indeed justified in attacking this new role of the courts by highlighting the absence of democratic values in the judiciary.
'Limited Government' and the Supremacy of the Constitution
‘Limited Government’ is ‘a government of laws and not of men’, an expression which was first, formally, adopted in the Constitution of Massachusetts in 1780. This concept was strongly rooted in the belief that men preferred democracy, for it was the only form of government that allowed the people to exercise their sovereignty.
Soon, Constitutions around the world made provisions for inalienable rights and the doctrine of separation of powers, thereby putting a check on arbitrary exercise of political power. In other words, these Constitutions conferred power in the hands of the judiciary to see that unlimited power may not be exercised by the majority regardless of the interests of the minority.
This was succinctly explained by Thomas Paine (Rights of Man, 1792) who said unless the powers of the government are defined and limited by a higher law (Constitution), it would be an exercise of power without right.
Judicial Review And "Limited Judiciary" in India
A judiciary, just like a legislature, becomes limited as soon as a written Constitution is adopted. A Constitution manifests the permanent will of the people; different organs of the government are mere creatures of the Constitution and owe their very existence to it.
In India, we have a written Constitution defining and limiting the powers of different organs of the Government, so that none can exercise any arbitrary power beyond what is granted by the Constitution. This was, surprisingly, highlighted by the Supreme Court in Golak Nath v. State of Punjab AIR 1967 SC 1643 in the following words:
No authority created under the Constitution is Supreme: the Constitution is supreme and all the authorities function under the supreme law of the land.
In the Indian Constitution, certain matters are explicitly made non-justiciable and thus, outside the judiciary’s realm. The most striking example of this is the non-enforceability of Directive Principles of State Policy as provided under Article 37 of the Constitution.
Similar restrictions exist in disputes relating to the election of a person as President or Vice-President (Article 71(4)), orders and other instruments made and executed in the name of the President (Article 77(2)), invalidating proceedings of a House (Article 100(2)), irregularity of procedure in Parliament (Article 122(1)) etc.
In India, judicial review is intertwined with judicial policy making and judicial legislation, which has been on a spiraling rise post-Emergency.
The very recent examples of such misuse of judicial power is best seen in the orders of the Supreme Court relating to banning of diesel vehicles above 2000 cc and the subsequent imposition of ‘diesel cess’, regulation of BCCI, prohibition of sale of liquor on national highways, and compulsory playing of National Anthem in movie halls.
By doing so, there has been an enormous wastage of judicial time, massive loss for the State exchequer, and loss of jobs. In fact, the hotel industry was hit so badly by the liquor ban that the Supreme Court was forced to issue a clarificatory order exempting municipal areas from the ban.
In other countries, such measures are done either by the Executive or the Legislature. These actions of the Supreme Court are, according to Professor John Hart Ely, a former Dean of Stanford Law School, impermissible. He also says that the judiciary’s focus should be on the process of government with substantive choices left to the political process.
Further, it is also pertinent to note that the judges are not electorally accountable and that when they declare executive and legislative actions as unconstitutional, they must do it with strict adherence to provisions of the Constitution.
Through a written constitution, we have inherited a limited government and a limited judiciary, and it is imperative that none of the organs of the government encroach upon the territory of each other.
The Courts must refrain from policy making and legislating, which must only be done by elected representatives. The role of the Courts is limited to checking the excesses of the Executive and the Legislature: it must protect the people’s inalienable rights as a sentinel on the qui vive.
An unlimited judiciary undermines democracy when they substitute their own views for those of elected representatives. The Attorney General’s remarks have indeed hit the bull’s eye!
(The writer is a lawyer at Madras High Court and can be reached @nexus_rho. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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