Article 142 of
the Indian constitution provides for enforcement of Supreme Court decrees. The cause
was the carriage of justice. If the victims knock at the court of justice and
if justice is delivered, it has to be enforced too. Therefore, the judiciary
must have the power to enforce its orders. Thus arose the need for Article 142.
The lower courts while having the power to enforce their decrees are also
subject to the review by their higher courts. Since Supreme Court is the
highest judicial body in the country, naturally its decisions are not subject
to review unless it takes up its own review. Secondly, even though justice
might have been delivered on paper, it needs to be enforced on the ground. For instance,
there is an eviction order, but the person refuses to leave the property. So in
this context, the constitutional backing allows the judiciary to enforce its
orders anywhere in India. Yet, with the passage of time, there exists a
possibility of the Supreme Court overreaching with its powers. There are possibilities
that exist which can make the judiciary act as a law unto itself. With independent
judiciary granted by the constitution, something essential in a democracy,
there is of course a possibility that the Supreme Court operate on unrestrained
manner thus creating potential chaos in the administration and governance. Therefore,
it would be pertinent to understand the current debate on judicial overreach in
the Indian context.
Take an instance
of the cracker ban debate. It is about the decision to burst the crackers or
not. Some might love to burst it while some others are averse to the same. The court
wades into the waters and favors those who are opposed to bursting the crackers.
This was a classic illustration of how the fundamental rights of those who
burst crackers are violated. In fact going further, it was a violation of the
rights of those who manufacture crackers. The ban is some kind of
unimplementable but gives enough power to the police to harass for their own
personal ends. In fact, the entire gambit of bursting crackers is the domain of
the executive. It is the decision of the executive to burst or not burst the
crackers. The role of the judiciary should be limited to the review of validity
of executive action or otherwise. If there exists a legislation the Supreme
Court can look into the validity of the legislation. It cannot make laws for
itself. The same holds good in the Dahi Handi case. The role of the Mumbai High
Court or the Supreme Court would be limited to reviewing the fact whether the
Dahi Handi was a violation of any local acts or otherwise. Anything beyond this
would be remiss.
The extent judicial
overreach would have tremendous implications. It would be prudent to revisit
the coal scam or the 2G scam cases. In both cases, the Supreme Court held that
the licenses were void. When they cancelled the entire licences, the economy
went for a toss given the spillovers involved in the same. They could have
adjudicated whether the government has powers to change the terms of allotment
and the validity of the same or otherwise. In deciding to set a policy itself,
the Supreme Court created an overreach which in fact potentially can create a
Frankenstein’s Monster. The cancellation of licenses in the said case meant
that the companies had lost significant money which they had borrowed from the
banks to obtain the license. They neither could repay the same nor could use to
bid for license in the new regime. This led to spiralling of non-performing
assets leading to balance sheet recession thus a downward trend in investment.
The judicial
overreach began when the executive vacated its space for policy and decision
making. Decision making on policy is prerogative of the executive. The judiciary
can at the most look into the constitutional validity of the same. It cannot go
into replacing the policy with its own desires and fancies. The overreach began
in the 1990s when PV Narasimha Rao government abdicated its role in many a
instance. The hawala case (Vineet Narain case) was an instance in point. It completely
changed the appointment mechanism of Director, CBI. This is again a government
prerogative which was usurped by the Supreme Court. With a weak executive at
that time, it went unchallenged. The Supreme Court arrogated itself with the
powers to appoint the members of the judiciary. This power was contested quite
late albeit unsuccessfully twice.
In the context
thus illustrated above, it becomes important that the judicial overreach has to
be curtailed. There is a certain air of romanticization about judicial
interventions. While they look to playing at the gallery, in reality, they
would be playing with fire. The founding fathers of the constitution were very
clear about demarcation of powers. They wanted the role of judiciary to be
restricted to interpretation of law. The judiciary must stick with the same. The
law making is the prerogative of the legislature. The Supreme Court cannot take
upon itself the powers which have been conferred on the legislature. The legislature
might be incompetent, might have thousand defects. Yet the reason cannot be
justifiable enough for a judicial intervention into lawmaking. There is ample
remedial measures through elections or otherwise to correct the flaws. There is
nothing that prevents Supreme Court from adjudicating the constitutionality of
the law. It has to judge whether the executive or the legislative action
violates any said law or the provisions of the constitution. There is no
business of the Supreme Court to get into business of governing for instance
BCCI. All it could have done was to examine whether BCCI Board was in line with
the articles of association or otherwise. It cannot arrogate powers which are
not theirs as per the constitution. To boot, there is no review of the Supreme
Court per se. Since it is final body, it can in theory become a dictator in
itself. This is something that has to be stopped. While in the current context,
the law has to ensure the Supreme Court has to operate within its powers. It is
perhaps too much to depend on Supreme Court to maintain self-restraint.
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