In reverse gear

The issues raised by a two-judge bench have the potential to undo many reformative steps taken by the apex court

M J Antony / New Delhi December 02, 2009, 0:27 IST IN THE BUSINESS STANDARD

Judicial activism has faced several assaults from politicians and bureaucrats ever since the Supreme Court became affirmative.But the sad part is that it has had to also face onslaughts from within.

When the public interest litigation movement was in its infancy, a bench of strict constructionists one morning brought up 10 questions that would have choked its growth in coils of conservative interpretation of the Constitution (Sudip Mazumdar vs Union of India). However, some years later, another bench deftly deflected the attack by “disposing of” the case without answering the loaded questions, and the movement advanced with renewed vigour. Citizens applauded it.

Recently, another bench drafted a set of questions that threatened to weaken the Supreme Court, which is said to be the mightiest under any democratic system. The thrust of this new lot was to restrict the powers of the court and leave the executive and the legislature alone on the ground of “separation of powers” (University of Kerala vs Council of Principals). This doctrine itself is undefined and has been a subject of constant debate among jurists for about seven centuries now. The Constitution of India does not recognise strict separation of powers.

In this case, a bench had earlier set up a committee of distinguished educationists and others to study the conduct of student union elections in view of criminalisation of student politics. The panel made some recommendations which the court asked the authorities to implement. When the matter came up before the bench mentioned earlier, the whole course of the case took a different turn. This bench raised complex constitutional questions. In its opinion, the court could neither legislate or take over executive functions, nor act as an “interim Parliament”.

The two-judge bench formulated several issues regarding separation of powers and the power of the court to direct executive authorities to implement its recommendations. It asked the Chief Justice to set up a Constitution Bench to address those issues. This could result in a giant leap backwards on several counts.

The question whether a two-judge bench can refer questions directly to a Constitution Bench, thus violating the court’s own practice and discipline, is only procedural. But the most worrisome aspect of the order is that it has the potential to undo many reformative steps taken by the Supreme Court all these decades. The famous Vishaka case (1997), for instance, laid down rules to protect women at workplace. In the absence of government action, the duty fell upon the court to “legislate” the rules. The government did not protest, and women welcomed it. If the court now reverses its policy, the judgment would have to be reviewed.

The government quivers at the thought of passing a legislation to enable and regulate adoption of orphans. But it was the Supreme Court that “legislated” rules in this regard. The government has since been merely following the norms set by the Supreme Court judgment in the LK Pandey case (1987) — it has not passed a law even after decades. Some other fields in which the court has taken affirmative steps are environment, unemployment and poverty alleviation. The nation welcomed the court’s initiative as the executive and the legislature had failed to enforce the fundamental rights of the citizens.

The view of this two-judge bench contradicts the established opinion in scores of judgments delivered by larger benches. In the C Ravichandran Iyer vs AM Bhattacharjee case (1995), the court said that the role of a judge is not merely to interpret the law but also to lay new norms of law and mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution a meaningful reality. Society demands active judicial role which was earlier considered exceptional but is now a routine. This view has not so far been doubted in any later judgment.

Renowned jurists have long accepted the role of judges as law-makers. John Austin said: “I cannot understand how any person who had considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator.”

The legal system in England, which has been adopted by India and other common-law countries, is based largely on judge-made law until around the 17th century. US Supreme Court judges recently observed that not only their court, but even the subordinate courts make laws because there are situations which are not covered by any law and the judges have to fill up the crevices. The questions now posed in the Kerala University case, therefore, appear not only redundant but also incapable of answers.


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