Over the last few years, issues relating to tradition, culture and society have often landed before the constitutional courts of the country in the form of public interest litigation with the expectation that courts will perform the role of societal arbiters when society or the legislature or the executive fail to do so. Notwithstanding such expectations from public interest litigants and “civil society groups” (which often drive such litigation directly or indirectly), constitutional courts must pause and ponder as to whether the role of societal arbiters falls within the ambit of their constitutional mandate. One of the most elementary and fundamental sequiturs of subscribing to constitutional morality is that every statist organ is expected to ask itself whether it has the authority/jurisdiction to discharge a particular role, no matter how noble the ostensible ends may be. Such an expectation — rather, constitutional obligation — exists for good reason, namely, to preserve the sanctity of the doctrine of separation of powers and its sound democratic and republican undergirding.
On the face of it, the doctrine, which is part of the basic structure of the Constitution according to the Supreme Court itself, is meant to preserve the respective turfs of the legislature, executive and judiciary. In other words, although the judiciary has the power of review over the other two organs, such power too has limitations which must respect the institutional independence and competence of such organs. Critically, the power of judicial review must not be interpreted as judicial supervision or superintendence over the legislature or executive. This position is especially applicable in matters of policy where domain expertise is called for, and in matters of societal experimentation where the festival of democracy must play itself out through the process of interaction and consultation between the electorate and the elected. Clearly, the doctrine of separation of powers is not meant merely to massage the territoriality of institutional egos, but to truly facilitate participative democracy in letter and spirit by not usurping the right of the public, rather the majority, to give effect to its will through the legislature. In fact, even if the decision of the majority is flawed, it cannot be interfered with by the judiciary except on grounds of constitutionality if the issue is capable of being subjected to judicial scrutiny. After all, society has the constitutionally guaranteed right to go through the process of trial and error through the instrumentality of the legislature. This is precisely why matters of reform are constitutionally reserved for the “State” as defined in Article 12, which includes only the legislature and the executive but not the judiciary. Only the State has the mandate to determine the need for, the timing and extent of reform.
Simply put, the power of judicial review is not meant to be wielded in such a way that judicial wisdom replaces the will of the majority by infantilising it since the Constitution does not envisage replacing democracy with judicial paternalism. On the contrary, the Constitution recognises that sometimes a good policy decision may be unconstitutional, and an otherwise bad policy decision may be constitutional. Only an instance of unconstitutionality warrants the intervention of the judiciary as the watchdog of the Constitution, if sought by the aggrieved parties. In all other cases, despite the best of its intentions, the judiciary has no other option but to remain a spectator to the vibrant dance of democracy, and dissuade public interest litigants and civil society groups from seeking its intervention at the expense of constitutional metes and bounds.
That said, there do exist greys where both the legislature and executive may feign policy paralysis for want of interest or incentive or to protect vested interests, thereby forcing the affected parties to seek judicial succour. For instance, if there is absolute legal vacuum on a given topic, the Supreme Court may sparingly and cautiously invoke its extraordinary powers under Article 142 to fashion a stop-gap arrangement to address an exigency until the legislature brings in a law on the subject. An example of this is the Vishakha guidelines issued by the Supreme Court on sexual harassment in 1997 until the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013. In certain cases, where the language of the law has enough latitude to enable courts to address contemporary realities, they can certainly resort to creative and logical interpretation to provide a remedy. In all other instances where there exists a law based on a valid social premise, the judiciary cannot bring it within the ambit of judicial review at the instance of aggrieved parties merely because the judiciary or some members of the judiciary disagree with the premise underlying the law. It needs to be appreciated that social premise falls within the realm of state interest, which, in turn, is the prerogative of the elected, not the unelected. State interest can be questioned on grounds of arbitrariness or unfairness or express constitutional violation, but not on grounds of judicial disagreement with the legislative or executive position.
In a nutshell, judicial disagreement with legislative policy is neither the touchstone nor proof of unconstitutionality. Only the Constitution is the touchstone to assess constitutionality and it would be disingenuous to exercise the power of judicial review in a way that judicial disagreement is repackaged as unconstitutionality. Where aggrieved parties disagree with the social premise behind a certain legislative policy and approach courts to dislodge such policy, courts must be careful to not overstep the lines painted by the doctrine of separation of powers. In such circumstances, the judiciary can, at best, gently prod the other two organs into revisiting the policy, but cannot compel them into arriving at a particular policy decision because that is the prerogative of the concerned organs.
It would be equally improper and unconstitutional on the part of the judiciary to express its opinion on matters of policy where it has no jurisdiction, with the intention of shaping public opinion or to put pressure on the other organs. While such an opinion does not legally bind the legislature, it certainly has the effect of loading public discourse and interfering with the process of societal cogitation in a manner that is both constitutionally impermissible and inappropriate. This is because the Constitution permits the judiciary to perform an advisory role in very limited circumstances and that too only when sought for. These bright red lines drawn by the Constitution cannot be breached by any constitutional Court because it would interfere with the course of democracy. It must be understood that courts do not exist to facilitate circumvention of the legislative process at the behest or instance of special interest groups. In a democracy, those who wish to convince the legislature of their position must put faith in engaging with societal and legislative stakeholders to put across their point of view with the hope of securing greater support. While this process is indeed time consuming, it is the essence of democracy and does justice to the oft-cited mantra of constitutional morality.
The above position does not and cannot change even if there is a government that enjoys a formidable majority which is often pejoratively dubbed as “brute majority” to enable and justify judicial intervention. The existence of a formidable majority is proof of a clear mandate from the people which must be respected, and interfered with only when the Constitution is sought to be undermined. To treat a formidable legislative majority as a default institutional adversary is as unhealthy for a democracy as it is to kowtow to such a majority by crawling when asked to bend, as was the case between 1975 and 1977. The choice need not always be in these extremes when a golden mean is possible. This would be consistent with the belief of the institution that sees itself as the North Star, the Dhruva, of Bharatiya democracy. It is, of course, a discussion for another day as to whether the Constitution has bestowed upon the institution the role of the North Star, or is it a case of self-perception.
The writer is a commercial and constitutional litigator who practises as a counsel before the Supreme Court of India, the High Court of Delhi and the NCLAT. He is the author of India that is Bharat: Coloniality, Civilisation, Constitution, and India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation
