Updated: May 15, 2021 8:59:02 am
The recent judgment of the Supreme Court in the Election Commission of India case is an example of judicial statesmanship. During the hearing of a matter, the Madras High Court felt that in the state elections, the EC had failed to enforce Covid safety guidelines, resulting in the spread of the pandemic. Oral observations from the bench stated that the “EC is the institution that is singularly responsible for the second wave of Covid-19” and “EC should be put up for murder charges”. This was widely reported in the media. The EC approached the SC. The SC has beautifully dissolved the conflict between EC and the HC, avoiding a positive pronouncement either way. However, the SC has done what it wanted to do.
The judgment protects the media’s right to report accurately the court’s proceedings even if not made a part of the record; it has also recorded an appreciation of the performance of the EC and nullified the effect of oral observations stating that “observations during the course of hearing do not constitute a judgment or binding decision”.
The SC minced no words in expressing its displeasure: “… the remarks of the High Court were harsh. The metaphor [is] inappropriate. We must emphasise the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language, both on the Bench and in Judgments, must confirm with ‘Judicial Propriety’. The degree of caution and circumspection by a high court has direct co-relationship with the nature and dimensions of the power of judicial review entrusted to it under the Constitution, which is on a high pedestal.” This message is to all the occupants of judicial seats who, momentarily, reacting to action or inaction of the government, a party before them, have failed to restrain themselves. The SC warns that “the judges… cannot misuse their authority by intemperate comments, undignified banter, or scathing criticism.”
The Court quoted Justice K Jagannath Shetty, as having said “the Judge’s Bench is a seat of power. Judicial Restraint and Discipline are as necessary to the ordinary administration of justice as they are to the effectiveness of the army. Restraint and humility are a constant theme of judges’ power by which they command respect and protect Independence of Judiciary.”
Such oral observations, as telling the state through its counsel that “you can be blind, we are not” and “beg, borrow, steal, but bring oxygen”, are earning popularity, hitting the headlines. Undoubtedly, the state is obliged to protect the life of its citizens and provide men, materials and means to strengthen health services. Yet, the courts cannot be oblivious of the fact that this is an extraordinary situation. The fundamental principles of the power of judicial review over administrative action are that the courts review the decision-making process and not the decision itself unless the decision is unconstitutional, illegal or perverse. The court cannot impose its decision on the executive simply on being convinced that “if I were you, this would have been a better decision”. The courts have to ask themselves: Are they informed of the situation better than the government? Do they have the sources to collect better the requisite facts? Would they be able to issue directions and continue making orders sitting in courts or chambers (11 to 5), when the situation demands, working 24×7 and taking overnight, minute-to-minute decisions, diplomacy and strategy apart?
Judicial activism, howsoever liberally interpreted, would be counter-productive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform, it is another to say “if you do not do, we will do it ourselves”.
The three wings of governance — the legislature, executive and judiciary — must have faith in each other. One wing scrutinising the action or inaction of the other cannot begin by attributing lack of bona-fides in the other. The judiciary has the power to correct the erring executive and direct it to act if it is failing to act when it should. At the same time, the courts have to be cautious that they do not wittingly or unwittingly become a source of obstruction in the performance of states’ obligations. Scathing observations act as disincentives to honest and dutiful officials who too have been working day and night fighting with a demon that is unpredictable and whose characteristics are not yet fully known to science. Ours is a federal structure wherein the Centre has to rise and fulfil the requirements of the states as per the Constitution. At the same time, it has to delicately balance and equanimitise the conflicting demands of states inter se if the resources are limited.
Firmly upholding the constitutional rights of the people without sacrificing sobriety would sustain public confidence in the impartial administration of justice. In a democracy, some tension does prevail between the three organs but in critical times, the three are expected to smite in unison to defeat the demon. Judges too should display the qualities of social leadership for they are the keepers of the rule of law. They need the quality of enthusiasm but, to borrow the words of Patrick Devlin, misdirected enthusiasm is rarely consistent with impartiality and never with the appearance of it.
Aharon Barak writes in The Judge in a Democracy that judicial policy and judicial philosophy are fundamental to the judiciary since they guide it in the most difficult hours. The strength of the judges is in understanding their limitations. More than they have answers to difficult legal problems, they have questions regarding the path they should take. All human beings err; for the judges, there is nothing more proper and practical than good judicial philosophy.
This column first appeared in the print edition on May 15, 2021 under the title ‘Justice as a fine balance’. The writer is a former Chief Justice of India.
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