Martin James
A lot has been written on the recent decision of the three-judge bench of the Supreme Court of India (SCI) regarding the farm laws. The court has constituted a panel to look into the merits of these laws, a clear interference on the exclusive domains of the legislature and the executive. However, this is merely the continuation of the over four decades of judicial overreach in India, cheered by many who criticises the current ruling. This excessive judicial activism has blurred the delicate lines separating the domains of the legislature, executive and judiciary.
The Indian Supreme Court enjoys an enormous, almost dictatorial, amount of power. This is by virtue of its extensive original jurisdiction, compounded by the curious vehicle of Public Interest Litigations (PILs), and through a peculiar judicial invention, ‘the basic structure doctrine’.
In judiciaries around the world, a major factor in judicial restraint is the appeal process: most cases filter through the lower courts before reaching the highest court. This adds a significant amount of moderation both in terms of legal scrutiny and time. By encouraging PILs, the SCI has done away with this important constraint and has consistently ventured into rulings on policy matters.
A plain reading of the constitution makes clear that there is no limit on the amending power of the parliament, provided it is procedurally correct. However, in the 1973 K. Bharati case, a 13 judge bench of the SCI invented an ‘undefined’ basic structure within the constitution which is beyond the competence of the parliament to amend. The court was to be the final arbiter of what this basic structure constitutes. This effectively gives the SCI a veto over the will of the people. In his dissent to the K. Bharati judgement, Justice Y.V. Chandrachud wrote: “a wide assumption of power to construction is apt to place in the hands of judiciary too great and too indefinite a power, either for its own security or the protection of private rights“. The system for appointments to the higher judiciary is a case in point as to how far away from the actual text of the constitution the judicial interpretations can be.
Sure, there are historic reasons particular to India which has necessitated the peculiar development of our judicial system. Nevertheless, it is my strong belief that these actions of the judiciary are contrary to the principles upon which our political system is based. It is worth remembering what Lord Reid wrote some sixty years ago about the British government, from whom we inherited our own political institutions: “Parliament is the proper place, and I am firmly of opinion the only proper place, to make laws. Where Parliament fears to tread it is not for the courts to rush in.”
Even if we discount the delicate legal and historic considerations, the practical dangers of judicial overreach are four-fold. First, inefficient decision making. By design, most executive and legislative policies are beyond the competence of the judiciary. By interjecting themselves into the sphere of policymaking, without the massive resources and manpower the other two branches pose, judicial decisions would inevitably turn out to be inefficient.
Second, the lack of accountability. By not being answerable to the people or any other institution, the decisions of the judiciary could become disconnected to the ground reality.
Third, the assumption of extra-constitutional powers by the judiciary could eventually be met with extra-constitutional actions by the executive. For instance, a powerful executive, frustrated by the lack of constitutional options, could persuade individual justices through covert means, so that the decisions are made in its favour. Given how the cases are allocated to the benches in the SCI, it would be sufficient for the executive to persuade just the CJI so that cases important to it are ruled in its favour. Ironically, judicial activism would then be an aid rather than a burden to the executive.
Fourth, it is quite possible that in the future a frustrated executive would simply set aside a ruling by the judiciary leading to a constitutional crisis.
Ultimately any institution is only as good as the people who inhabit it. I do hope that the Justices, current and future, take steps to correct this excessive judicial activism. Doing away with PILs and a gradual rollback of the basic structure doctrine would be steps in the right direction.
As Montesquieu famously said, “There is as yet no liberty if the power of judging be not separated from legislative power and the executrix”. The trajectory the Indian Judiciary is on is unsustainable. A course correction, one way or another, is inevitable.