With each passing day, my conviction that the Supreme Court of India has gone beserk in its handling of issues gets confirmed to a greater degree. What was the Court thinking when it admitted the PIL by Soli Sorabjee asking the centre to implement rules for better equipment and reforms to the police ?
The petition is founded on the false ratioanale that Article 21 confers the positive obligation on the State to protect the people and that presently the state authorities are not equipped to do so. The Constitution, literally read, does not mention this and looks at Article 21 as a negative obligation. Added to this is the fact that incorporation of positive obligations under Article 21 is the creation of judicial decisions itself. The first question then is whether there is an uncontestable duty of the state to protect its citizens under the Constitution. The question specifically has never been held or dealt with by the Supreme Court. Infact, the only instance where this was found was in a 1996 Delhi High Court judgment of Bhajan Kaur v. Delhi Administration, CWP 1429/1996 . In that case, the Court held;
“the expanded meaning attributed to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardised or endangered.”
One may argue however, that references to public order, security of the state and the presence of Article 355 bring out this duty to protect. True, but this in no way makes the issue as unequivocal as the petition makes it to be.
More so, by asking the Court to interfere in the Executive’s handling of terrorism, it is transgressing into the very idea of separation of powers and constitutional limitations. Relevant in this regard is the decision of the Court in Asif Ahmed v. State of Jammu and Kashmir, (1989) Supp 2 SCC 364 stating,
“Although the doctrine of separation of powers has not been recognized in India in the rigid sense, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive and the judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to the other. The Judiciary has no power over the sword or the purse.”
But in Vineet Narain v. Union of India, AIR 1998 SC 889 the Court ignored this idea and ordered the CBI to handle the investigations into the corruption of politicians in a manner that it thought fit. This was the starting point from when the Court started interfering in decisions of policy by the executive and the working of Investigative agencies. Now, with the way things seem to be going, the Supreme Court is going to issue a mandamus to the centre asking it to equip the agencies with arms and weapons as it (the judiciary) deems fit. Nothing actually gets more ridiculous than this.
My understanding is that this action by the Court has got nothing to do with the Constitution but our judges engaging in populist actions so as to get the support of the people. I would advise readers to read Larry Kramer’s article on Popular Constitutionalism wherein he makes the argument that most often than not, Courts transgress written constitutional principles and form their own opinions that take the shape of constitutional law only to bring forth the image of the Court as a defender and protector of the people. The very idea of engaging in something like this is flawed and injures the working structure of our Government.
People argued that the Indian Supreme Court went on such a path to shed its image after ridiculous decisions like ADM Jabalpur v. Sivakant Shukla given during the time of emergency. This apparently was one of the reasons for Bhagwati J to introduce PIL in SP Gupta v. President of India. If this is true, then three decades are more than enough to show a degree of remorse for those actions. The present state of unprecedented actions by the Court are a display of how powerful our Court actually is and it would be interesting to see if the Centre would have the guts to put its foot down and ask the Court not to be involved in its business.
My essay for Constitutional Theory titled “Despotism in a New Form: Judiciary and the Constitution in India” discusses the manner in which the Court has gone on to engage in judicial activism and the rationale it uses to do so. I then seek to answer the question as to whether we to have a system of judicial supremacy in India even though the Court explicitly denies it. The essay may be found here.
Prof. Larry Kramer’s recent book on Popular Constitutionalism may be downloaded here.
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