By Apoorva and Shreeja S
On November 7, a three-judge Bench of the Supreme Court directed government authorities across the country to remove and relocate stray animals (particularly dogs and cattle) from certain public spaces. The order has sparked intense discussion about the position of stray animals in our society, the place of compassion in governance, and the role of the higher judiciary as the guardian of India’s Constitution. However, the order raises serious questions.
The rule of law is a critical principle of governance and a part of the basic structure of India’s Constitution (I R Coelho vs State of Tamil Nadu, 2007). British jurist and constitutional theorist A V Dicey elucidated on the three core elements of the rule of law: The absolute supremacy or predominance of the law (as opposed to the influence of arbitrary power), equality for all before the law, and an independent judiciary that determines people’s rights and obligations under (emphasis added) the law. We argue that the November 7 order violates all three of these elements.
First, the order raises a key legal question: Can the judiciary choose to disregard a law (statutory or administrative) promulgated by the legislature or the executive without declaring the law in question to be unconstitutional or ultra vires its parent legislation? In our opinion, unless the judiciary exercises its power of judicial review of legislative or administrative action, it is bound to uphold the law of the land as it stands.
In the present case, the order passed clearly contradicts the Prevention of Cruelty to Animals (Animal Birth Control) Rules, 2023 (“ABC Rules”) framed under the Prevention of Cruelty to Animals Act, 1960. In doing this, the Court order sets a risky precedent for itself and other courts in the country — one where the written law is not considered important while passing orders that affect millions of inhabitants of this country, both human and otherwise. By choosing not to be bound by the existing law, the order violates the constituent elements of the doctrine of the rule of law.
Moreover, the order only deviates from the ABC Rules because they have not been implemented effectively. The sobering reality is that laws in our country are often imperfectly implemented. That cannot be a legal reason to disregard their existence. In the absence of a legitimate reason for deviating from existing law, the order becomes arbitrary and fails the test of Dicey’s rule of law.
Further, in its previous (August 22) order, the apex court had directed individual citizens and non-profit organisations seeking to be heard in the matter to deposit sums of Rs 25,000 and Rs 2,00,000 respectively. We argue that by doing this, the court imposes a premium on people’s ability to be heard and directly impinges on citizens’ right of access to justice.
It is equally imperative to understand that writ petitions are not ordinary litigations. In fact, this case was a suo motu petition that the Supreme Court had initiated, and it was not the parties that had brought it before the Court. Under these circumstances, the imposition of a deposit prevents all but those with the means to pay to approach the court and state their concerns, thereby commodifying the process of justice-delivery.
Public trust in the judiciary is paramount for a healthy democracy. It is also the first casualty when courts pass orders that fail to meet established principles of governance. During times like this, it is important to remember Thomas Fuller’s words: “Be you ever so high, the law is above you.”
Apoorva and Shreeja S work at ALPN Research Foundation, an independent think-tank
