Courting limits

These are strong words of reprimand, the likes of which have not been expressed so far by any sitting judges. Much of the criticism by the two judges is valid. Much is unsaid which causes uncertainty.

There can be no doubt that the litigating public has developed a syndrome of routine recourse to the courts for every perceived failure of government. And the courts, on their part, have come to believe that it is their judicial duty to intervene in such failures by making micro-managing orders for correcting or improving government. The vast catalogue of such orders made by the Supreme Court and 21 high courts includes orders for wearing of helmets and seat belts to avoid accidents in cities, cleanliness in housing colonies, disposal of garbage, control of traffic, control of unmanned railway crossings, prevention of pollution of rivers, action plans to control and prevent menace of monkeys in cities, control of breeding of animals in zoos, measures to prevent ragging of students, collection and storage of blood banks, control of noise and banning of fire crackers. Several committees set up and empowered by courts have effectively displaced government’s administration.

It is correct that matters beyond the judicial competence of the court have been entertained. In 1993, the Supreme Court ordered that provision of food of 1200 calorific value should be supplied to hostages in an ongoing military operation in Kashmir. It has professed to monitor the highly technical engineering scheme of interlinking of rivers in India. In the field of higher education, the court’s interventions have created a maze of complex regulations familiar only to lawyers. The court’s scheme for admissions in private medical colleges in the Unnikrishnan case in 1993, which was indistinguishable from legislation, prevailed for nine years before it suffered an inglorious end when the court itself struck it down as ‘unconstitutional’ in the T.M.A. Pai case in 2002 causing considerable confusion in admissions into professional colleges.

With all the trenchant criticism by the two judges of the present tendency of courts, it requires stressing that there remain legitimate areas of judicial activism. Judicial activism is a word of many shades. No person today subscribes to Bacon’s view that judges must only declare the law and they do not make law. Such a view was rightly described as a fairy tale by a distinguished English judge. Judges do and must make law but not in the manner of legislatures. There is much scope for creative judicial activism in the interpretative functions of judges, on the choices inherent in their function and in the gaps in legal rules as has been done by superior courts in several countries.

The Supreme Court’s own creative jurisprudence of the inviolability of the basic structure of the Constitution in 1973 and the importation of non-arbitrariness in the fundamental right of equality, and of due process of law in the right to personal liberty in the Maneka Gandhi case in 1978, are stellar examples of how judicial function can be creative. Regrettably, this kind of creative judicial activism of our courts seems to have been displaced by a poor substitute of routine judicial correction and monitoring of governmental functions by courts. In no other country has judicial activism of this type prevailed as in India.

There is another area in which the courts’ function cannot be condemned as over-reaching. It is the historic and constitutional duty of courts to safeguard and enforce the basic liberties and rights of individuals. A court is strongest and least vulnerable when it grounds its interventions in enforcing the basic rights of individuals against authority, particularly of those who are poor, indigent and marginalised. No question of the court breaching the separation of powers can arise here. The origins of public interest litigation — or PIL, as it is now called — were in such unexceptional interventions as when the court ordered the release of bonded labourers or stopped inhuman working conditions in stone quarries. It is also the court’s legitimate function to enforce the law if it is willfully disregarded with grave consequences to society. No question of the court over-reaching its powers can arise in such cases.

The admonition of the two judges of the Supreme Court may cause problems in the PIL jurisdiction being exercised by high courts. Propriety required that the judges should not have commented on pending cases in the Delhi High Court as they have done. There are other areas in public interest litigation, which are still the legitimate function of courts which the recent judgment does not address and cannot be considered as hands-off for courts. How are courts, particularly the high courts, to exercise this jurisdiction now? One suggestion is that a larger bench of the Supreme Court should lay down authoritative criteria of the permissible and impermissible judicial interventions. Some time in 1983, a bench of the Supreme Court did make such a reference to a larger bench, but it remained in cold storage. To distil judicial power by rigid rules of conduct is not advisable but it may at least guide the future course of the action of courts in the vast and amorphous jurisdiction assumed by them in the name of judicial activism.

The writer is a senior advocate of the Supreme Court and former solicitor-general of India