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Searching for an equilibrium

By: ASHWANI KUMAR | November 16, 2016 (Ref: thehindu.com)

Questions recur about the rightful limits of judicial intervention in the matter of policy choices in the executive and legislative domains

In the 67th year of the Republic and 70th year of freedom, we find ourselves engaged in a heightened debate on the imperatives of preserving the constitutionally ordained jurisdictional equilibrium between the legislative, executive and judicial branches of the Indian state even as we celebrate the expansion of constitutional freedoms and the resilience of our democracy. At the heart of this debate is the reach of judicial review power exercised by the Supreme Court. Given the tenuous relationship between the executive and judiciary, the subject is increasingly relevant to the functioning of our constitutional democracy. While the sterling contribution of the court in asserting the inviolability of and expounding the right to dignity as the core constitutional value has been universally acclaimed, questions recur about the rightful limits of judicial intervention in the matter of policy choices in the executive and legislative domains.

The foundational principles

Some of the court’s transformative judgments are recalled to indicate the evolution of our constitutional order, premised on protection against the arbitrary exercise of power, non-discrimination and “constitutionalisation of socio-economic rights”. Establishing the procedural fairness and reasonableness test in Maneka Gandhi (1978) to determine the constitutionality of the exercise of executive power and declaring in M. Nagaraj (2006) that Articles 14 (right to equality), 19 (right to fundamental freedoms) and 21 (right to life) “stand at the pinnacle of the hierarchy of constitutional values, the court recognised that human dignity, equality and freedom were “conjoined, reciprocal and covalent values” (Sandra Liebenberg, 2005).

While expanding human rights jurisprudence and recognising as fundamental the citizens’ right to food, health, education and clean environment, etc., the court in an expansive interpretation in V. Markendeya (1989) recognised the Directive Principles of State Policy as “the conscience of the Constitution” which give shape and meaning to fundamental rights. Having thus established the foundational principles for the exercise of a wider judicial review jurisdiction traceable to Articles 13, 32, 136, 142, 147 and 226 of the Constitution, the court declared that judicial review was a “constituent power” and an integral component of the unalterable basic structure of the Constitution (Kesavananda Bharati, 1973).
Expanding review jurisdiction

However, moving beyond the socio-economic rights, the court’s review has been invoked in “public interest” to question major decisions of the government concerning policy choices, for instance in what are now known as 2G spectrum and coal mine allocations cases. Challenge to proceedings of legislative assemblies and decisions of the Speaker have also been entertained by the court (Nabam Rebia, 2016). Recent decisions of the court voiding a constitutional amendment approved by Parliament to alter the procedure for appointment of judges (National Judicial Appointments Commission or NJAC judgment, 2016), exercising review powers in what is popularly known as the AFSPA — Armed Forces (Special Powers) Act — case to hold that the use of excessive force by the Manipur Police or the armed forces of the Union was not permissible, has extended the courts’ review jurisdiction to domains hitherto regarded as the exclusive preserve of the executive and legislatures.

Protagonists of a wide judicial review jurisdiction argue that it subserves the rule of law (Dicey, 1956), advances the cause of justice, is consistent with democracy and rules out only those choices that are obviously unreasonable and inconsistent with democracy (Ronald Dworkin, 1986). Socrates’s condemnation to death by Athenian democracy is recalled to argue that liberal democracy needs to protect itself against “the rule of the mob”. James Madison had argued for “auxiliary protections” to secure the fundamental liberties of citizens (The Federalist Papers).

Limiting the ambit

Even so, questions abound as to the rightful ambit of the court’s judicial review jurisdiction within the framework of parliamentary democracy premised on the assumption that people exercise their sovereignty through elected representatives and not through the unelected judges. “Judicial supremacy”, “judicial excessivism” or “judicial despotism” are seen as antithetical to democracy and contrary to its first principles. It is argued that representative democracy is as much a part of the basic structure of the Constitution and that judicial review, although constitutionally sanctioned, cannot be exercised to negate or subordinate other fundamental features of its basic structure.

In some of its recent judgments, the Supreme Court has itself cautioned against ever increasing expectations from it. In a substantive judgment in Santosh Singh (2016), a Division Bench of the court declined to entertain a public interest litigation (PIL) seeking a mandamus for the inclusion of moral science as a compulsory subject in the syllabus of school education. In an eloquent exposition in the NJAC case, Justice J. Chelameswar in his minority judgment rejected a distrust of the legislators in securing the constitutional fundamental and argued: “To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.” In its opinion in a Presidential Reference, a Constitution Bench of the Supreme Court had earlier opined that “Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom”. In a recent order, the court declined to entertain a PIL seeking the court’s directions to restrain the Union government from incurring security and other expenses in respect of certain individuals in the State of Jammu and Kashmir on the ground that these writs are “judicially unmanageable”.

Looking for the middle

Benjamin Cardozo, the celebrated American jurist, had cautioned years ago that “there is no assurance that the rule of majority will be the expression of perfect reason when embodied in the Constitution or in statute. We ought not to expect more of it when embodied in the judgment of the Courts”. Nor can we forget that “… the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by” (The Nature Of The Judicial Process, 1921). Scholars supporting limited judicial review have argued that courts are at best ‘platonic guardians’ of democracy and that “it is entirely incompatible with democracy for courts to define their mission as one of correcting elected officials who have strayed too far either from what the judges think is right or from what they claim they know (and the legislators do not) that the people really think is right” (John Hart Ely, On Constitutional Ground, 1996).

The ongoing debate concerning the limits of judicial review in a parliamentary democracy is anchored in profound philosophical issues concerning the nature of representative democracy and the inalienable fundamental human freedoms that need to be insulated against the “impulses of transient majorities”. In the light of our own experience of the political and judicial processes, it is legitimate to ask:

• Can the original justification for the court’s anti-majoritarian role be used to equate constitutional supremacy and judicial independence with “judicial supremacy”?

• How do we resolve disagreements over “constitutional-interpretative judgments” in the framework of a functioning democracy, given the disclaimer of judicial infallibility by the court itself?

• Assuming a decline in credibility of the political executive, can the judiciary act as “co-governor” of the nation?

• Where do we locate the “equilibrium between the Scylla of insensitive detachment suggesting indifference and the Charybdis of unwarranted intrusion” to fix the frontiers of judicial power in a constitutional democracy without being on the wrong side of the “democratic faith”?

As we reflect on these questions, it seems self-evident that in the articulation of constitutional principles, Pascal’s spirit of “self-search and self-reproach” reflected in recent judgments of the Supreme Court will best subserve to strengthen the institutions of India’s liberal democracy and sustain over time the otherwise wide ambit of judicial review, so that the judiciary remains “a light unto the nations” without being a “sheriff unto the nations” (José A. Cabranes, 2015).

For the moment, we must accept that the weight of the court’s authority and acceptance of the extensive reach of its judicial imprimatur is best explained in terms of popular trust in its moral and intellectual integrity rather than in a stretched philosophy of constitutionalism. The decline of Parliament as the highest forum of our democracy, the perceived insensitivity on the part of the bureaucracy to the pressing priorities of the people at large, a general distrust of executive power and loss of faith, generally speaking, in the moral and ideological integrity of the political class collectively account for an expanded remit of judicial review.

Ashwani Kumar is a Senior Advocate at the Supreme Court and former Union Law Minister

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