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 .
    Reply
    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
      Reply
      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...
        Reply
        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..
          Reply
          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.
            Reply
            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.
              Reply
              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.
                Reply
                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.
                  Reply
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