Circumspection, My Lords

Freewheeling use of Article 142 is raising questions about judicial diktats inattentive to consequences

Written by Kapil Sibal | Published:April 21, 2017 12:59 am
supreme court, supreme court jurisdiction, judicial diktats, enforcement of decrees, npas, non performing assets, Article 142, indian constitution, india news, latest news The Supreme Court. (File Photo)

With the power of judicial review, the expanse of our Supreme Court’s jurisdiction is unmatched compared to other judicial forums around the world. The greater  the power, the greater the responsibility in its exercise.

The Supreme Court has, over the years, created milestones in judicial pronouncements resulting in historic shifts, positively impacting the nation in its onward march for justice. The genesis of Public Interest Litigation in listening to the voice of the voiceless and giving access to the poor, the marginalised and the weak is a unique experiment to be lauded. It has also effectively, on occasion, dealt with the corroding effect of corruption.

But for the Supreme Court’s proactive role, it would have taken many more years for Compressed Natural Gas (CNG) to be the fuel of preference in the transportation sector. Dealing with bonded labour, neglected children, the non-payment of minimum wages to workers, violations of labour laws, sexual harassment at the work place, harassment while in police custody, are a few examples where the court has constructively intervened.

These are positives, which earned the  institution kudos. But in some areas, the Supreme Court is ill-equipped to make judicial pronouncements. The recent decision invoking Article 142 of the Constitution of India, prohibiting the sale of liquor in establishments, restaurants, vends, etc., within 500 metres of national and state highways makes one question the role of the Supreme Court. Recognising the desire of the court to save lives lost due to drunken driving, such judicial diktats are not the outcome of a legal suit between parties. The location of hotels, restaurants or vends, selling liquor is a pure policy decision, best left to governments to take.

There is also a constitutional issue which arises. Should the Supreme Court, given the fact that the subject matter of liquor is within the exclusive domain of state legislatures, through judicial diktat, impose a decision on state governments? My objection is not limited to this constitutional issue. I am more concerned about the consequences of such judicial diktats.

The Supreme Court, when issuing this directive, was perhaps not fully equipped with all the facts. That the states could have moved the Supreme Court and informed it of the consequences of its decision is indeed proof that the decision was taken without being fully cognisant of the facts. That hotels would lose their five-star ranking is one such consequence. That millions associated with the liquor business would lose their jobs is another consequence.

That the state will lose a vital source of revenue, which would become part of the Consolidated Fund of the state for multifarious state programmes, is yet another consequence. Public interest is a very unruly horse.

If public interest becomes the raison-d’être of decision-making, then the contours of the constitutional concept of the separation of powers will be blurred. The judiciary might then be persuaded to deal with every ill that confronts this country.

While we applaud the judiciary in exhorting the government to listen to gender concerns, malnourished children and its role in asking the government to respond to the plight of farmers in Tamil Nadu, at the same time, we question the freewheeling use of Article 142 of the Constitution. On occasion, while exercising this power, personal liberty is at stake and the rule of law in jeopardy. Sometimes, the use of Article 142 has  economic consequences that tend to destabilise the economy.

The cancellation of all telecom licenses to serve the cause of public interest without individual culpability jeopardised the survival of entities. Rising non-performing assets (NPAs) are, to some extent, the result of judicial decisions. Courts may not, or may choose not to, consider their impact on the economy. The telecom sector is, till today, reeling under the after-effects of the Supreme Court judgment. The consequences of cancellation of all allocations of coal mines have adversely impacted the balance-sheets of public sector banks. One of the consequences of such omnibus cancellations is defaults on bank loans. The consequent NPAs impact the economy.

The decision to ban the sale of diesel cars with an engine capacity of 2000 cc and above is yet another instance of judicial overreach. This, in fact, jeopardised possible foreign investment. The decision was later reviewed. In the long term, such decisions dampen the spirits of foreign investors.

We live in a very complex world in which the media is at the forefront of public discourse. Social media, yet another unruly horse, with its outreach, impacts the lives of millions. Populism is at its height. The contours of civilised discourse have vanished. Economic interests sometimes drive public discourse. News is occasionally motivated. For the court to be completely isolated from this environment is not easy. Most of us tend to be swayed by what we read. Judges are not superhuman. They, too, are mortals. This is why they have to be exceptionally careful in rendering decisions, which cause unintended consequences.

Several judgments of the court reiterate the principle that recourse to Article 142 of the Constitution is inappropriate, wherever a statutory remedy is available. This has not deterred the Supreme Court from taking the cover of Article 142 in its desire to do justice. The problem is that there is no court above the Supreme Court. Lawyers, who practise in the Supreme Court, day in and day out, are seldom willing to stand up and question this practice.

It is time to stand up and for judges to be more circumspect when taking decisions beyond the apparent contours of their jurisdiction.

The writer, a senior Congress leader, is former Union Law Minister and a lawyer

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  1. M
    m
    Apr 23, 2017 at 9:27 am
    SC has still not been able to deliver justice due to the politician not allowing . Adarsh housing is till not demolished is a live example in-spite of illegal construction , govt land and corruption only reason it was made for Govt people .
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    1. K
      KBGoswami
      Apr 23, 2017 at 6:46 am
      In my opinion The GOVT should have control over selling price of-Food,Fuels,Transport,and the like-even subsiding where justified to help the m es-the outgo from the Exchequers will be compensated by less of help from emergency and relief funds of the Govt AND the donsteam profit-making by middlemen.Ultimately it will help bring down PRICES of commodites and improve citizens ' well-being.Lets study how Gov functions where there are NO TAXes.Some of the progressive countries are in this group.......kbg
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      1. P
        Prem Swaroop
        Apr 22, 2017 at 5:44 am
        Sir, your words itself is testimony of the good , courageous works of SC.As lawyer you are using Media to put across your point ,this itself make you low on legal ac en.And regarding Economic issues it actually entails that though there may be corrupt citizens, corrupt governance but not corrupt Judiciary. World looks out for it dia answers by virtue of its Cons ution. Trust and Good for Right Not All has always be the only true key for what we say Development or Good Governance. The Corporators should think themselves that by simply profitering at the exploitation of some is Not an Good idea when we have actually become a Global Village....Grow up 4 Better India...
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        1. V
          Vbandhu
          Apr 22, 2017 at 1:31 am
          Sibal trying to hide this govt mistakes as SC overreach... Coal scam or 2g scam it is his own creation not blaming on court will help him. Anyway put a best argument , no wonder he is a renowned lawyer..
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          1. S
            S. Gowrishankar,
            Apr 21, 2017 at 10:42 pm
            The judges in the supreme court, so called, have slowly become rogues. Their judgement does not seem to be the outcome of an intellectual interaction but driven by galleries. The rogue judges think nothing can be done to them. They have planted the seed of a revolution and it is taking shape and this court and its scoundrel judges will be taught a lesson.
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            1. V
              vishw
              Apr 21, 2017 at 8:54 pm
              One may not agree with the company he keeps politically. But, all will agree with his concerns about judicial over-reach, how unelected, judges take over government role quite easily. There should be accountability for even judges, for example, accounting to joint house committee of elected members. Their recommendation about judicial over-reach should be respected by President and PM.
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              1. L
                Laboni Singh
                Apr 21, 2017 at 8:44 pm
                Very informative article,especially the link between NPAs and judgement.Forces one to think from new angle. how everyone is responsible for pulling down the country.All fine till we learn from it.not right to blame thew political cl alone.
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                1. G
                  Gopal
                  Apr 21, 2017 at 7:50 pm
                  It is refreshing to see a Congress leader point out Supreme Court over reach. If anything he has been far too generous to the court for its intentions and ability. Over the years the courts have produced rulings that have no basis in law, rulings that clearly contradict their own other rulings, and rulings that are plainly absurd. Readers, who are critical of Sibal simply just because he is a Congressman, should think twice about supporting a court that, today, is a protector of the criminal and the corrupt.
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                  1. S
                    Sam
                    Apr 21, 2017 at 7:48 pm
                    Whenever government is not doing its job, someone has to step-in. The outcome may not be great but it is the govt. which is responsible for that situation. In this case, what has the government done to reduce drunken driving? Name one solid measure. None. So, why complain now? You cannot justify that money from liquor s tax is used to do good deeds. That is like a robber saying that I rob rich to pay the poor I like, so I am not doing anything wrong.
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                    1. V
                      vs
                      Apr 21, 2017 at 6:29 pm
                      With the exit of the ex CJI and the present govt. tough on looters sibal dog is ting in his pants.So many adverse judgments have been p ed by judges.where was this dog then?He realizes his time is up and is time for him to count the bars.Hail modi.waiting to see this dog in the cell.
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                      1. S
                        sanajy
                        Apr 21, 2017 at 6:08 pm
                        Credibility ofSupreme Court of India hit gutter level when 1 CJI allowed bail on phone by the author of this article . This author is a goonda in SCI but servant chhap Judge NPariman dances nude to this goonda times. Hear terrorists at 2am but linger Temple Matter for 6 years , asks dr Swamy on his locus stand in case but happily allows 21 vagabonds and political pimps to become party yo open court at 2am Disallows sleaze tapes of Abhi Singhvi but allows fake tapes on Hindu seers and saints to run on TV PIMP judges and Goonda Tout like Sibal is all SC is.
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                        1. G
                          Gopalkrishnan Nair
                          Apr 21, 2017 at 8:40 pm
                          The comments by bakth gives credibility to what Mr. Sibal says. Donot bother RSS products are not known for quality.
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                        2. A
                          Avinash
                          Apr 21, 2017 at 5:41 pm
                          Kapil left Shah Bano decision that was nullified by Rajiv majoritarians, out of the list of SC milestones. How convenient, eh? Now regarding five star status, serving liquor is not an overriding factor here. There're other parameters. zillions of them.
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                          1. G
                            gopal
                            Apr 21, 2017 at 5:31 pm
                            Few people realize how Supreme Court has abetted corruption and corroded governance. PILs hide serious conflicts of interest and are often encouraged by the courts themselves to indulge in politics. The previous CJI's threats to the govt were based on delivering judgements on PILs, without regard to the inherent conflict of interest that he was involved in. Suo moto turns a judge into a hidden litigant because the question - "how did the judge know" or "what does he believe" is never brought in the open. Judges have threatened to bring cases when they don't get railway reservations. They have also been involved in decisions that are inherently uncons utional such a Jalikattu, National Anthem, and Liquor. of course, the NJAC decision destro the distinction between the law and the cons ution. No other judiciary in the world is this reckless or this lacking in judicial temperament.
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                            1. M
                              manu
                              Apr 21, 2017 at 5:28 pm
                              not a big fan of Kapil Sibal, but he is right. In this age of populism and live action, it is easy to miss long term perspective and nuanced views. When effectiveness of leadership and governance is measured by its po rity and fanfare we needed in utions like SC to uphold decisions based on reasons and hard facts even if they are unpo r among the genral public. By adhering to bizare street logic SC has exerted it authority but lost its respect.
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                                P BHASKARNA
                                Apr 21, 2017 at 5:24 pm
                                Mr.Kapil Sibal has atlast spoken sense. A time will come the country will be ruled by the Courts. For each and everything the Govt. will have to get clearance from them? If that be the case why should there be state/Central Govts? It is time the courts are disciplined. P BHASKARAN
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                                1. S
                                  sanajy
                                  Apr 21, 2017 at 6:12 pm
                                  This tout named Kameena Sibal is l goonda liar in SC corridor . He was happy dancing nude when 1 CJI gave bail to liar and swindler Teesta Begum over phone threat by Sibal This legal pimp can deliver lies, forgery and kickbacks and nothing else
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                                  1. G
                                    Gopalkrishnan Nair
                                    Apr 21, 2017 at 8:35 pm
                                    Now you know the level bakths can go. Forgive the for their chepness.
                                2. A
                                  anil
                                  Apr 21, 2017 at 4:26 pm
                                  very sensible article.. Judges needs to be judges only and not politicians, bureaucrats, social reformers and crusaders rolled in to one called super human.
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                                    Gopalkrishnan Nair
                                    Apr 21, 2017 at 4:19 pm
                                    Some statics say that the more fatal accidents or one two wheelers without helmets. Most of them are not because of alcohol. A rule is suppose to be existing against it. Even today I found a good percentage of two wheel riders without helmets. I saw policemen too. I am told that unless you stand up while national anthem is being pla I shall not be an Indian. Getting thrashed up and a police case can be bonus. If eat beef I can be deported. If I accompany a girl through a road, irrespective of she being a sister, I can be in some major trouble. If she is waring adress which is not approved by our moral brigade she can surely be in trouble. Well our construction says if other wings fails SC will take care of it. It is better to stop or sedition charges can be close. And if you apply for bail the order will come with filim song lyrics and some medical prescriptions. With all these the only hope is the supreme court.
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                                    1. K
                                      Kishan Kumar
                                      Apr 22, 2017 at 8:16 am
                                      A two wheeler without a helmet dies on the road only because a 4 wheeler without a seat belt drives irresponsibly and hits the 2 wheeler.
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                                    2. D
                                      DILIP
                                      Apr 21, 2017 at 3:30 pm
                                      This ghetto ignorant corrosive parasitical feral is no better then a rabid insidious LYING DECEITFUL CON GIT Kutta, who has a visceral hatred for Hindus. Never trust a word of this illiterate fake buuss terd. India must not provide refuge to these types of scavengers.
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                                      1. G
                                        Gopalkrishnan Nair
                                        Apr 21, 2017 at 4:01 pm
                                        Well, you called him a DOG. But it is youwho is barking. Perhaps you are bakth and is being pardoned.
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                                      2. C
                                        Col S
                                        Apr 21, 2017 at 2:38 pm
                                        He is silent on POLITICAL COLLUSION to loot the people & country, PROTECT CORRUPT and LEGALISE P ER. Evident from 2G, coalgate & CWG. NPA is a FRAUD with peoples's earnibgs & savings. JUSTICE dela is jusice denied? Why ADJOURNMENTS. Having escaped public wrath on WRONGS, NETA,BABU have become bold, arrogant and LAW UNTO THEMSELVES. VIP Culture- VIP Security is a CURSE on the nation. Mr Sibal and his friends have reduced our democracy to GOVERNMENT for the corrorrupt,rich, privileged and thieves. PAC sielent on Rs 12000 crore Panjab Foodgrain theft? Times have changed. With telecom revolution & social media PEOPLE KNOW EVERY THING.He knows that all are IN LEAgue TO LOOT.legal jargon & jul mlas WILL NOT HELP. hIS DAYS ARE over.
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                                        1. R
                                          Ravi
                                          Apr 21, 2017 at 7:57 pm
                                          I agree with you only to the extent that comparing Sibal with dog was wrong as dog is a faithful and loyal to its masters. We cannot say same to Sibal as he tried to cheat his country by inventing zero loss for telecom scam and he is the one who takes up cases of terrorists, supports anti national NGOs headed by Teesta Setalvad, Shabnam Hashmi etc. He and Chiddu planned the police attack on peacefu protesters in Ram Lila Ground in Delhi, used his dirty brain to fix BJP leaders in wrong cases. He used friendly journalists like BD, RSD, , KT etc to I would rate Sibal as one of the worst human beings in the Indian political landscape today. This big mouthed liar lawyer is more known for anti national activities than doing any good for the country.
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                                        2. S
                                          snivas
                                          Apr 21, 2017 at 2:24 pm
                                          Mr Sibal, You are right we are living in a complex world and more so where law is for the privileged cl and eminent lawyers protect the offenders, its time to have diktats rather than having laws in place that for last 65 years and reduce it to be ineffective and serve the common man. Media will give a limelight to only those in power and that can be temporary but social media is now picking on all. When we keep yelling nobody is above law I guess its only social media that will help implement and not the hypocrites (read it politicians, bureaucrats and VVIP)
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                                          1. K
                                            K.Suresh
                                            Apr 21, 2017 at 2:03 pm
                                            Tomorrow courts may decide all automobiles pollute the air and, IN PUBLIC INTEREST, ban them. Only a government , which has all the resources to study the consequences and overall effects and carry the burden of their decisions, should be empowered to take the decision - not the judiciary and not the parliament. However benign and well meaning, dictatorship is not acceptable.
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