Soli Sorabjee’s writ petition in the Supreme Court asking it to order the government to take measures to effectively deal with terrorism has created quite an interest amongst legal circles. Law and Other Things has detailed posts on it and Abhinav Chandrachud gives and interesting analysis on the ‘Right against Terror’ here.

I also have written here that the petition rests on the rationale that there is a Constitutional duty of the State to protect its citizens under Article 21; where as the Court earlier hasn’t stated any such duty.

In this post, I would like to explore another dimension to this writ. If the contentions in the writ be accepted then it is my opinion that it would have serious consequences on the way the government is run under the Constitution. My argument is that while judicial interference in legislative and executive functions already takes place, doing so in matters of policy and security of the State is warranted neither by the Constitution nor Constitutional law and doing so would belittle the idea of constitutional supremacy.

A reading of Article 355 would allow us to infer that it is the foremost duty of the central government to defend the borders of the Country. This also includes a duty to prevent any internal disturbance and maintain law and order. However, in as early as 1959, the Supreme Court in Memon Haji Ismail’s case held that declarations of war & matters concerning the defence of India are instances on which a Court cannot form any judgment. ‘defence of India’ could include both external aggression and internal disturbance. It could also be that they are to be considered as matters of policy and the Court cannot in any way tell the centre as to how the Government should be run.

Having established that the defence of the Country is exclusively in the realm of the Central Government, in State of Rajasthan v. Union of India, the Court held that it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted to the Constitution to other departments of the State which may be better equipped to perform them.

“Questions of political wisdom or executive policy only could not be subject to judicial control. So long as such policy operates in its own sphere, its operations are immune from judicial process.”

Thus, asking the Centre by a writ to better equip the police and forces with the latest weapons would be interfering into a realm exclusive to the executive.

But in my opinion, the starkest revelation to the dangers of what may happen have been put forth by Justice BN Shrikrishna’s article titled ‘Skinning the Cat’ (2005) 8 SCC (jour) 3 where in he says;

“I wish to point to a recent and disturbing trend of using the judiciary to second guess unambiguously legislative and executive powers. Indeed, our judges have succumbed to the temptation to interfere even with well- recognized executive powers such as treaty making and foreign relations. …

One Shudders to think whither this trend could lead- whether, for example, the constitutionality of a declaration of war or peace treaty (or matter concerning the defence of the Country) could also be questioned in a Court of law? If the courts were to strike down the peace treaty as being unconstitutional, would the armed forces be compelled to pursue the war under judicial mandamus?

Indeed my mind boggles at such eventualities, however improbable they may appear, given the new found enthusiasm for judicial activism in areas that are inarguable no pasaran (they shall not pass) for the judges”

Perhaps Justice Shrikrishna’s fears may just come true with this case.

 


Sarabnanda Sonowal v. Union of India, (2005) 5 SCC 665.

(1977) 3 SCC 592