Hard cases, it is said, make bad law. The adage is widely considered true for the Supreme Court of India which held in the height of the Emergency, in ADM Jabalpur v. Shivkant Shukla that detenus under the Maintenance of Internal Security Act (MISA) could not approach the judiciary if their fundamental rights were violated. Not only was the law laid down unconscionable, but it also smacked of a Court more “executive-minded than the executive”, complicit in its own independence being shattered by an all-powerful government. So deep has been the impact of this judgment that the Supreme Court’s current activist avatar is widely viewed as having its genesis in a continuing need to atone. Expressions of such atonement have created another Court made to measure — this time not to the measure of the government but rather the aggrandised self-image of some of its judges.
Arghya Sengupta It has often been heard during discussions surrounding the > 40th anniversary of the Emergency in the last month, that the Supreme Court had its darkest hour in this period. For those not familiar with the history of the Court, it might be instructive to understand why. In ADM Jabalpur , the four judges in the majority, Chief Justice A.N. Ray and his successor Chief Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati handed down a judgment that was fatally flawed in law. Given that the consequences of their error were entirely to the government’s advantage, it was widely viewed as the death of an independent judiciary. The excessively deferential, almost apologetic language used by the judges confirmed this impression.
Life, a bounty of the government The legal question before the Court was whether as a consequence of a presidential order suspending the fundamental right to life and personal liberty (Article 21) during the operation of the Emergency under Article 359 of the Constitution, detenus who had been put behind bars under the provisions of MISA without any reasons being provided, could challenge their detentions as unlawful in a court of law. The majority held that Article 21 of the Constitution that had been suspended was the sole repository of life, personal liberty and judicial review in the Constitution. Further, that the rule of law in an Emergency would be entirely what the government said it should.
On both counts, the judges were entirely mistaken. While it is an arguable proposition whether there is a right to life and personal liberty in natural law, outside the Constitution, there can be no debate on the proposition that the power of judicial review, i.e. the power of the Supreme Court to examine the legality of executive action does not depend on Article 21. Thus, whether a detention order under MISA was validly issued in terms of the statute itself is a question that the Court must remain competent to adjudicate on notwithstanding the emergency at hand. Otherwise, under the pretext of the Emergency, a government can — and in the case of Indira Gandhi’s government did — round up its opponents in the name of national security. In legal terms, the rule of ultra vires , that the act of government cannot go beyond the power vested in it by the legislature, is hardly a creature of Article 21; it is a principle of common law that predates the Constitution.
“ For an unelected and largely unaccountable institution such as the Supreme Court to be at the forefront of matters relating to governance is dangerous… ”
Second, as a court of law, the Supreme Court was called upon in this case to balance the interest of public order in an Emergency with the right to life and personal liberty guaranteed to every person. Nine High Courts called upon to perform the same function had found a nuanced answer by which they had held that the right to life cannot be absolutely subservient to public order merely because the government declared so — the legality of detentions could be judicially reviewed, though the intention of the government would not be second-guessed by the Court. This was a delicate balance. The Supreme Court however reversed this view and made the right to life and personal liberty literally a bounty of the government. If this genuflection did not look perverse per se , in hindsight as the real rationale of the Emergency became apparent, it was devastating for the image of the Court as an independent institution.
Speaking truth to power It was only the dissenting judgment of Khanna J. that spoke truth to power. On the one hand it did not enquire into the subjective satisfaction of the government as to whether an emergency proclamation was required or whether detention of particular persons was expedient. At the same time, it did not provide a carte blanche to the government, preserving a minimal but significant remit for judicial review to assess whether the legal requirements for detaining a person had been met. As a price for his honesty, Justice Khanna was superseded when by convention he ought to have been appointed the next Chief Justice of India. With Justice Beg accepting the government’s offer in defiance of convention, the Supreme Court looked all too human; yet another institution in India whose independence lay shattered by the government, its reputation in shreds.
Noted scholars have inferred that the Supreme Court’s activist avatar in the 40 years since and particularly prominent today, can directly be traced to this dark episode in its history. Justice Bhagwati, the pioneer of the public interest litigation movement in the Supreme Court publicly apologised for his judgment, rare for a Supreme Court judge. At his behest, the Court came to the rescue of bonded labour, girls in protective homes, undertrial prisoners, minimum wage workers and several other disadvantaged and needy groups in society. The radical nature of such judicial intervention coupled with the sweeping nature of orders against elected governments, makes the inference irresistible that public interest litigation was the Court’s shrewd and humanist atonement for its genuflection before government during the Emergency.
In activist mode Today, however, while public interest litigation has restored the independent image of the Supreme Court, it has achieved this at the cost of quality, discipline and the constitutional role judges are expected to perform. The Court monitors criminal trials, protects the environment, regulates political advertising, lays down norms for sexual harassment in the workplace, sets guidelines for adoption, supervises police reform among a range of other tasks of government. That all these tasks are crucial but tardily undertaken by government can scarcely be questioned. But for an unelected and largely unaccountable institution such as the Supreme Court to be at the forefront of matters relating to governance is equally dangerous — the choice of issues it takes up is arbitrary, their remit is not legal, their results often counterproductive, requiring a degree of technical competence and institutional capacity in ensuring compliance that the Court simply does not possess. This sets an unhealthy precedent for other courts and tribunals in the country, particularly the latter whose chairpersons are usually retired Supreme Court Justices. To take a particularly egregious example, the National Green Tribunal has banned diesel vehicles more than 10 years old in Delhi and if reports are to be believed, is considering imposing a congestion charge for cars as well. That neither of these are judicial functions and are being unjustly being usurped by a tribunal that has far exceeded its mandate, is evidence of the chain reaction that the Supreme Court’s activist avatar has set off across the judicial spectrum.
Finally, the Court’s activism adds to a massive backlog of regular cases that makes the Indian justice delivery mechanism, slow, unreliable and inefficient for the ordinary litigant. As on March 1, 2015, there were over 61,000 cases pending in the Supreme Court alone. It might be worthwhile for the Court to set its own house in order, concomitantly with telling other wings of government how to do so.
As we mark 40 years of the Emergency and the darkest period in the Supreme Court’s history, it might be time to not single-mindedly harp on the significance of an independent judiciary. Judicial independence, is and must remain a cherished virtue. However, it would be blinkered to not confront newer challenges that damage the credibility of our independent judiciary today — unpardonable delays and overweening judges taking on the mantle of national government by proxy. The Supreme Court 40 years on is a different institution — it must be cognisant of its history but not at the cost of being blind to its present.
(Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, a New Delhi-based legal policy think-tank.)
Correction
This sentence earlier read: “The Court monitors criminal trials, protects the environment, regulates political advertising, lays down norms for sexual harassment in the workplace, sets guidelines for adoption, supervises police reform among a range of other tasks of government.” It should have been: “The Court monitors … , lays down norms for the handling of sexual harassment cases in the workplace, … government.” The error is regretted.
