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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.

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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.

News articles on the issue;

1) SC asks Centre about Equipment for Cops

2) Sorabjee moves the SC

3) SC notice to Centre on PIL to equip police

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I must confess and state that I am strongly against judicial activism and the prevalent attitude of the Court to frame law and make people and institutions subject to it. Protecting the rights of the individual and seeking to enforce them under writs of mandamus and ‘public interests litigations’ is one thing; but to totally transcend Constitutional dictats and attain a degree of superiority over the other two branches in non-fundamental rights areas is totally another. In the latter, I talk with specific reference to the ‘Judges cases’ and the practice of the Supreme Court and High Courts to elect its own judges.

Under the Constitution, the President is to appoint the judge on the recommendation of the Chief Justice of India. The Constitution also mentions the qualifications required to be a Supreme Court and a judge of the High Court. However in a series of decisions starting from SP Gupta v. President of India in 1982 till the Judges Reference case in 1998 the Supreme Court has taken upon itself the power to appoint the judges making the sanction given by the President and the Executive a mere ministerial act. The procedure now; nowhere mentioned in the Constitution; is that a collegium of judges is to be formed and the Chief Justice, upon their recommendation sends the names of the suitable judges to the President. The President now sits as a puppet and is bound to approve of the Chief Justice’s choice unless there is some extraordinary reason.

This is by far the single most important act of activism by the Courts that is nowhere mandated by the Constitution but for the Article guaranteeing the independence of the judiciary (Article 94). No other democracy in the world seeks to put forth and approve of this view of the Court appointing its own judges

A few days ago the Chief Justice forwarded the names of 3 judges of various High Courts to be appointed as judges of the Supreme Court to the Prime Minister’s Office. The PMO upon noting that few senior judges had been superceeded by this recommendation has sent the list back to the Chief Justice. This is a bold move by the executive considering that by the decisions of the cases mentioned above, the executive is bound to follow the CJI’s recommendations. In fact, this is one of the first instances where the executive has put its foot down and decided not to succumb to the ridiculous will and mandate of the judiciary. The Constitution mandates that the executive and legislature aid the judiciary in the enforcement of its decisions and that not doing so would lead to a contempt of Court. The only known instance where the Court tried to make use of this power was when the Speaker of Manipur Ibobi Singh decided not to follow a Court order cancelling disqualification of certain MLA stating it was not in the jurisdiction of the COurt to do so. The Supreme Court had then initiated contempt proceedings which were later withdrawn. This instance then gives a chance for the Court again to debate on its jurisdiction and powers and rethink certain ridiculous decisions that it had made earlier.

In what was once reckoned to be the ‘least dangerous branch’ by Alexander Hamilton the Court in India is seen to transcend constitutional limitations to give itself great powers. Chandrachud J. had described such a phenomenon in In re Special Courts Bill in 1979 as the ‘great usurpation of power’ and cautioned the judiciary against it. Alas! I don’t think such a sentiment has echoed within the judiciary over the past two decades.

On Nov. 7, a Supreme Court Bench comprising Justices Thakker & D.K. Jain held that an abortion by a woman without her husband’s consent will amount to mental cruelty and a ground for divorce. To quote the Hon’ble Bench,

Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse.

Cruelty is laid down as a ground for divorce in the Hindu Marriages Act, 1956. That the SC has gone beyond the realm of physical abuse to recognize recurring instances of mental cruelty in marriages is welcome news indeed. Nonetheless, one may observe with deference that linking abortion (without the husband’s prior consent) to mental cruelty is perhaps not in consonance with the female partner’s freedom of choice and decision-making.

At the onset, it is pertinent to note that there is no constitutionally guaranteed right to abortion in India. The limited ambit of this right stems from the Medical Termination of Pregnancy Act, 1971, where S. 3(2) provides for the ‘termination of pregnancy’ in certain cases. The statutory right is extremely constricted, and the abortion cannot be by mere demand but by concurrence from medical practitioners in good faith. The provision itself is an expression of society’s widespread belief that women are incapable of making judicious and independent choices. The conditions laid down in the Act permitting such termination would seem more technical and patronizing in intent, and certainly not reflective of a rights-oriented paradigm.

Arguments before Courts on the matter are invariably convoluted with the right to life of the unborn foetus. In a head-on collision between the rights to life and abortion, there are no prizes for guessing what the activist judiciary will favour. Having said that, it is also important to observe that the Supreme Court, in abortion cases before it, has held the condition, opinion and consent of women in high regard. However, those were all instances of women refusing to abort; not of active affirmation to do the same (See cases like Dr. Nisha Malviya and Anr. Vs. State of M.P, Shri Bhagwan Katariya and others Vs. State of M.P. 2000.)

In an already tapered-down scenario, it is humbly stated that the SC through its recent judgment in Suman Kapur v. Sudhir Kapur(Nov. 7, 2008) has further exacerbated the submissive condition on women in our society. The Hon’ble Court has virtually stated that the husband’s consent is mandatory before a foetal abortion is made: by linking the absence of consent to mental cruelty, the Apex Court has given the already-dominant male partner a trump-card of sorts to enforce his preferences on a matter critically relevant to women. Perhaps the Hon’ble Court may have been guided by the pressing need to endorse consensual decisions in the family. However, the judgment cannot be read in isolation from prevalent societal circumstances, and one can regretfully point out the existence of anything but a level-playing field.

It is perhaps fitting to conclude with the words of Dr. Betty Friedman in her Keynote speech during the 1st National Conference for repeal of Abortion Laws held in Chicago (1969):

There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…………The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.

Four years later, the U.S Supreme Court responded bravely and echoed her sentiment in Roe v. Wade. Is it not time we embraced the same reality?