Judiciary vs executive: Is the country's Constitution becoming a victim in this pursuit for supremacy?

Here we are again.

The government and judiciary clash in the course of an argument. The Attorney General says that the court "has taken over executive powers". Justice Dhananjay Y Chandrachud countered by pointing out that it was his brother judge, Justice AK Sikri’s orders which "ensured we could breathe during Delhi". To which the Attorney General pointed out the jobs lost in the liquor ban judgment, which Justice Chandrachud countered by saying it was only the Centre’s policy being enforced. Wow. Much drama. Such debate. So conflict.

Battle for supremacy. PTI

Battle for supremacy. PTI

Are we making too much of regular back and forth in the courtroom? Yes, we most certainly are. The issue in the case which saw this exchange is whether the Supreme Court and high courts can rely on the reports of the Standing Committees of Parliament. One point of view would be that a court turning the report of the Standing Committee of Parliament into a binding direction would infringe on the powers of Parliament. This is the view argued by the Attorney General. Justice Chandrachud takes a contrary view on the matter and the debate goes on.

Ho-hum.

It's less of a debate these days and more of a scripted play. The same arguments, counter-arguments and justifications have been trotted out since the concept of judicial review was enshrined in the Constitution. It was meant to be thus -- that the legitimately elected Parliament could be checked by an unelected body, read Supreme Court. The Parliament has the power to change the law and the Constitution as it sought fit and in turn be met with resistance from the judiciary, if required and so on. It’s been happening since the 50s and continued since and it will continue to happen forever more. Because that was the constitutional intent.

If the judiciary and the government sang from the same sheet, rest assured, our fundamental rights are in peril.

Take for instance the National Anthem case. It takes a certain lack of self-awareness on the part of the court and the government to talk about "encroachment" of Parliament’s powers by the judiciary when the Union was only too happy to play along in the utterly illegal and unconstitutional directions passed by the Supreme Court in this case. If the government genuinely believed the court was traipsing its domain, as a matter of principle it should have argued that the court had no business issuing such directions.

It is also utterly disingenuous for the Union government to turn up to the court and demand that a law (which the Union is perfectly competent to amend or repeal) be struck down as unconstitutional, and then complain that the court is intruding into Parliament’s domain. Whether it is in the context of the triple talaq or Section 377 of the Indian Penal Code, the executive’s concern for Parliament’s powers didn’t exactly come to the fore in asking the court to do the job that was properly the government and Parliament’s in the first place.

This somewhat disingenuous debate hides a deeper problem that is just not being debated seriously. This problem was brought to the fore by Anuj Bhuwania in his book, Courting the People. In essence, it is his argument that it is not the consequences of a PIL that make it good or bad, but whether the due process (the core of what makes a court, a court) was followed. It is Bhuwania's strong contention that Indian courts, in their haste to be seen to be addressing rights violations, have given short shrift to the procedural aspects of justice creating the space for greater rights violations. When the courts played fast and loose with the procedure when it came to releasing bonded labourers, it also meant the same could be done to forcibly evict slum dwellers and footpath vendors. The crux of the debate is not really about whether the court has such powers, but how it has used them and on whose behest.

Framed this way, we see the true problem with some of the Supreme Court's orders -- the National Anthem case involved no actual legal dispute but somehow the court compelled every movie theatre to play the National Anthem without hearing them. The Supreme Court forbade state governments from renewing the licenses of liquor vends, without hearing the license holders, not to mention state governments apart from those of Tamil Nadu and Punjab.

Worse still, the court seems to have no clear idea what it is doing breaches constitutional boundaries in respect of citizens’ rights and federalism. The Supreme Court has forced speech upon citizens in clear violation of Article 19(1) and turned a mere advisory of the Union government into a law binding on the states, on an issue the Union had no power to make law in the first place. We have come to the stage where the court not only plays fast and loose with the procedure but with the Constitution itself. Either the National Anthem order or the highway liquor ban offer little by way of reasoning or thought or principle before trampling all over the Constitution.

What the "debate" about "judicial overreach" actually obscures is this sorry fact: that increasingly, the executive and the judiciary find themselves on the same page when it comes to trampling all over the Constitution.

This is what we should all be worried about.


Published Date: Oct 28, 2017 10:46 am | Updated Date: Oct 28, 2017 10:46 am


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