KTS Tulsi is an politician and a senior advocate in the Supreme Court of India. He has represented many notable people in various significant cases
Chief Justice Earl Warren of the US Supreme Court at the end of his career (1969) was asked, “What was the most important case of your tenure?” He did not say it was the case that dealt with segregation in schools; he did not say it was the right of the attorney to remain silent. He said Baker v. Carr. Why was this case so important? It is perhaps so because it created a boiling feud between the judges. One judge suffered a nervous breakdown and another landed up in hospital but this case changed the course of US Supreme Court forever.
The reason why we dwell upon this from the US Supreme Court is the political import of the case in the Indian context, where political overlaps by the apex court has created issues which have finally boiled over in the recent temblor where four SC judges practically rebelled against their head, the Chief Justice of India.
Baker was a simple enough case with regard to redrawing of boundaries of electoral districts every 10 years. This, it was claimed, was necessary on account of vast disparities between the value of votes of rural and urban voters. A Republican voter, Charles Baker, claimed that he was denied equal protection of laws because his vote was devalued.
Relying on the doctrine of political question, the defendant, Tennessee Secretary of State, argued that the court cannot provide remedy to this issue. Three judges of the Middle District of Tennessee Court dismissed the suit but the US Supreme Court overruled the judgement and held that citizen’s right to vote, free from arbitrary impairment, was judicially recognised and that denial of equal protection presented a justified constitutional cause of action, although Justices John Harlan and Felix Frankfurter dissented.
The above judgement of the US Supreme Court resulted in streamlining the doctrine of political question. It held that the Court would withhold its opinion on the following six issues –
• When the matter pertains to another branch of government such as the power of the President in foreign affairs;
• A lack of judicially manageable standard for resolving the issue;
• Need for initial policy determination which cannot be done by the court;
• A situation which would violate the separation of powers framework;
• The need to strictly adhere to previous political decision; or
• The possibility of clash between branches of government resulting in embarrassment.
As against the US Supreme Court adhering to the position that courts could not provide a remedy on these issues in view of the political questions doctrine, the Supreme Court of India has chosen to chart its own course. In a recent case dealing with the promulgation of ordinance and satisfaction of the President, a 7-Judges Bench of the Supreme Court of India in Krishna Kumar Singh & Anr. v. State of Bihar & Ors. (2017) 3 SCC 1 considered the development regarding constitutional mechanism with respect to the doctrine of political question. It referred to the earlier cases where it has been laid down that political questions were also liable to be tested as the Constitution does not contemplate their exclusion. In fact in A K Roy Vs. Union of India (1982) 1 SCC 271 the Supreme Court has held that there is nothing like a political power under our Constitution. It also held that the doctrine of political question that was evolved in the US was on the basis of the system of “rigid separation of power, unlike ours”. It also held that the express bar created in way of judicial review of dissolution of Assemblies has been consciously and deliberately removed by the Parliament. The Supreme Court went to the extent of holding in the landmark Bommai case that “…the refusal to interfere…would amount to abdication…” It justified interference in cases “involving fraud on power or an abuse of power”. It further elaborated that if the exercise of power is based on extraneous grounds, interference of the court may be warranted. Thus gradually, all executive functions including the grant or refusal of mercy petitions have been brought within the mandate of judicial review and the doctrine of political question has been thrown overboard.
While it is not known whether there was a deliberate link between the apex court insisting on dwelling on the political question and its inherent psyche to expand its powers, eventually that is what happened in the form of the PIL, or Public Interest Litigation. This expansion of the jurisdiction of the constitutional courts (Supreme Court of India and High Courts has been in three phases. The first phase began in 1970 and lasted till 1980, in which it concerned itself mainly with the “subject matter” as the focus of the PIL. At that time, journalists, social activists, academicians and lawyers filed most of the PILs and most of these petitions related to the rights of the disadvantaged sections of society. These were child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, women, etc. In the first phase, the relief was mainly sought against the Executive on the ground that the action or non-action amounted to breach of fundamental rights. In this phase, the PIL sought to bring about social transformation/revolution. In the second phase, PIL expanded dramatically and involved issues of environment, corruption, sexual harassment, relocation of industries, rule of law and good governance. By now, the courts had become more assertive and unconventional. They lay down guidelines in areas of legislative gaps, began monitoring criminal investigation but at the same time, in the second phase, the misuse of vast proportions was also noticed. In this phase, the courts also took to judicial legislation. In the next century, came the third phase. It came to be believed that anyone can file any petition. A PIL was filed to prevent the marriage of Aishwarya Rai to a tree. The Supreme Court ventured into disinvestment plan of the government, and in one case of State of Punjab Vs. Devans Modern Breweries opined that “socialism might have been a catch word from history…this view that the Indian society is essentially wedded to socialism is definitely withering away.” The rise of PIL and growing activism has made Supreme Court of India the most powerful court in the world. The court has interpreted the “due process” to be a part of Article 21 of the Constitution in the Maneka Gandhi case. While this case was a turning point in the human rights jurisprudence, the fact is that the Constituent Assembly had expressly rejected the due process doctrine. The courts also created new fundamental rights taking a cue from the Directive Principles and established “basic feature doctrine” creating implied limit on power of the Parliament to amend the Constitution.
There has been positive as well as a dark side to the PIL. On the positive side, it lent constitutional protection to the disadvantaged sections like prisoners, destitute children, bonded labourers, women, SC/STs amongst others. In that sense, it heralded a social revolution, but on the dark side, it increased the work load on the Supreme Court and High Courts tremendously. This resulted in ever increasing pendency and arrears which in turn resulted in depriving justice to the people whose cases had to wait for longer periods. Prisoners remained stuck in prison, landlords had to wait longer, officials aggrieved by executive action became worst victims as their causes lapsed. Besides, it created friction and confrontation with other organs of the government when the courts entered upon policy issues like privatisation, disinvestment, advertisements on rocks, pollution of rivers, relocation of industries or even regulation of traffic and out of turn allotments of government houses. The courts took up cases of smoking in public places, employment of children, right to strike, right to health, right to education, externment of wild monkeys, nude pictures in newspapers, kissing of Indian actress by Richard Gere and a PIL against a stage show on the New Year Eve. This brought into focus the nuisance of PIL and inefficient use of limited judicial resources. According to a critical review of Surya Deva publication on Public Interest Litigation in India, there has also been criticism of PIL being used for judicial populism. Justice Dwivedi in Keshavananda Bharti case sounded a note of caution saying that the Court is not chosen by the people and is not responsible to them in the sense in which the House of the People is. It is also perceived as a mere symbolic justice because a number of government issues dealt with by the judiciary have not resolved the problems. Issues like sexual harassment, procedure of arrest, right to life, right to food, right to education, right to health & shelter and a horde of social rights had not changed the ground reality. On the other side of the spectrum is the view that the PIL has disturbed the constitutional balance of power. Even if the Constitution does not follow strict separation of powers, it still embodies the doctrine of checks and balances which should be respected by the judiciary. Thus, the judiciary needs to exercise self-restraint when it goes on to legislate, settle political questions, take over governance and monitor executive agencies. In a critical appraisal in his work, Fifty Years of Supreme Court of India, Jain says that, “PIL…should not encroach upon the sphere reserved by the Constitution to the executive and legislature.” Academicians have also noted lack of consistency in the application of PIL. In some cases, the court wades into the policy issues whereas in others, “it hid behind the shield of political question”. The author gives the example of sexual harassment, custodial torture and adoption of children, where it intervened and the cases of uniform civil code, ragging, height of Narmada Dam, where it refused to intervene. Whether the expansion of the PIL jurisprudence has led to greater accountability of the legislature and executive is also debatable. Also, in many situations, the activist role of the court has led to the Executive and the Legislature taking a back seat and preferring to wait for judicial intervention. Thus, it is believed, that the overuse of PIL may have diluted the original commitment where it was meant to be confined to enforcing human rights of the victimised disadvantaged groups. In spite of the court’s endeavour to prevent misuse of PIL jurisdiction, a large number of PILs continue to be filed daily. In fact, the Supreme Court has itself on a number of occasion expressed their frustration over the misuse of PIL and has noted that 95% of PILs are frivolous.
Overstepping & Arrears
All the problems with judiciary today arise out of overuse of PIL on one hand and delay in the disposal of cases on the other. The appointment procedure has also brought the court in conflict with the Executive. The issue of appointment of judges has been reduced to a tug of war by both the sides. The Supreme Court believes that the power of selection must exclusively vest with the Court as any outside influence will adversely affect the independence of judiciary. At the same time, no other country follows a procedure of judges appointing judges. The Supreme Court itself is dissatisfied with the manner in which the collegium has functioned. This difference of opinion has led to an unprecedented delay in appointment of judges and the government continues to arm-twist the judges by refusing to tow their line. The root cause of the problem behind the press conference of the four senior most Judges of the Supreme Court of India last month seems to be lack of any institutional mechanism in dealing with the complaint against judges. In the UK, there is a clear cut judicial complaint procedure which provides that the Chief Executive will deal with the complaint within a period of three months. It provides that if the complaint relates to the President of the Supreme Court, then the Deputy President or the senior most member of the Court deals with the same after consulting the next senior member. Notice of complaint is given to the subject and formal action begins with the report to the Lord Chancellor. The Tribunal which deals with the complaint is established by the Lord Chief Justice of England and Wales, Lord President of the Court of Session and Lord Chief Justice of Northern Ireland. There are two independent persons of high standing also who are nominated by the Chancellor. The member is informed of full details, the Tribunal investigates and makes a report, summarising the facts as found, and deliver the report to the Lord Chancellor. Whether the report is to be published or not is decided by the Chancellor. A similar procedure was envisaged by the earlier government at the Centre in 2013 through the Judicial Standards and Accountability Bill, which provided for a comprehensive mechanism for handling complaints made by citizens on grounds of alleged misbehaviour and incapacity against judges of the Supreme Court and high courts. However, the bill lapsed after 2014 General Elections. In December 2016, responding to a question in the Lok Sabha, the then Law Minister DV Sadananda Gowda stated that “…the Judicial Standards and Accountability Bill has lapsed…we are working on it…decision will be taken after taking suggestions from stakeholders...”
Feet Dragging NDA
Until now, no step seems to have been taken by the government in this regard. On the contrary, in a reply to another question asked by me in this respect in the Rajya Sabha, the Minister of State for Law & Justice, PP Chaudhary, stated on 09.02.2018 that “…as per two resolutions adopted by the Supreme Court of India, in its full Court meeting on 7th May, 1997…any complaint against the Judges of Supreme Court and High Courts are handled as per the ‘in-house procedure’...” From the above reply it is apparent, that the government seems to have jettisoned any such exercise which can provide a comprehensive mechanism to look into the judicial complaints and replace the NJAC Act with a better law to lay down a transparent procedure for appointment of judges to the constitutional courts. A legislation in this regard, which passes constitutional muster, should have at least been introduced in three years after NJAC Act was struck down by the Supreme Court, but the aforesaid answer of the Minister seems to suggest that the government is against any such proposal. After all, sky is the limit for Parliament to evolve a different legislation with wider consultations. The dream of true democracy can be realised only when we have efficient judges free from fear and prejudices of power centres, for which transparency in their appointments through an independent commission & their accountability thereafter through a proper & efficient grievance redressal forum is an urgent need of the hour.