New Delhi: The Narendra Modi government has found fault with the Supreme Court for drawing references from multiple US Supreme Court judgments to strike down certain provisions of the law governing tribunals.
In an affidavit filed last week before the apex court, the Modi government said the court, in its July 2021 judgment, cited various US authorities, ignoring the real legal position. And, that in the United States, judgment after judgment of the Supreme Court was disobeyed.
The government has also quoted several US Presidents who publicly spoke against their Supreme Court’s verdicts, with some even challenging the judges who delivered the judgment to enforce it.
The affidavit was filed in response to a fresh round of litigation over the new tribunal law passed by the Parliament, re-introducing the four provisions that were quashed in the July 2021 judgment. A bench led by Chief Justice of India (CJI) N.V. Ramana is seized of a set of petitions, filed by Congress leader Jairam Ramesh and the Madras Bar Association, questioning the Tribunals Reforms Bill 2021.
The four contentious clauses that are the subject of debate deal with the tenure of a tribunal member, age criterion for a proposed member, a direction to the government to notify appointments of the recommendations approved by the Search-cum-Selection Committee (SCSC) within three months, and a direction under which the SCSC can nominate only one candidate against each vacancy.
‘US Supreme Court repeatedly disobeyed’
The Modi government’s affidavit stated that the July judgment elaborately went into the laws of England as well as the United States. The judgment is inspired from Sir Edward Coke’s words to King James I that the courts of justice alone can decide causes concerning the administration of justice, as “His Majesty was not learned in the laws of the realm of England”.
But, the government affidavit submitted, the situation prevailing then in England has “nothing to do with the constitutional environment existing today”.
“The Indian Parliament with 534 elected representatives, including eminent lawyers, owing accountability to their constituencies and with their collective decision representing the will of the people of the country, is a far cry from the times of King James 1,” it said, maintaining that Parliament and the Executive have “exclusive jurisdiction” in the realm of policy making.
The affidavit went on to say that the Supreme Court was not justified in proceeding on the basis that by “reason of separation of powers and the independence of the judiciary in the United States, the judgments of the US Supreme Court were fully implemented”.
It further cited verdicts that remain “without fulfilment”.
A 2014 article written on the 60th anniversary of a well-known US SC judgement titled Brown versus Board of Education of Topeka was referred to in the affidavit to highlight how “Brown was unsuccessful in its purported mission to undo the school segregation that persists as a modal characteristic of American public education today”.
In response to another US Supreme Court order that struck down as invalid a piece of oppressive Georgian legislation of ‘Indians’, US President Andrew Jackson had refused to permit the decision to be enforced, the affidavit submitted.
Similarly, Thomas Jefferson and Abraham Lincoln had also remarked against the judiciary. According to the affidavit, while Jefferson said “nothing in the Constitution has given the Supreme Court a right to decide for the Executive more than to the Executive to decide for them,” Lincoln announced that “none is obliged to be bound by the judicial interpretation of the Constitution”.
“Things came to a head when, in the 1930s, the New Deal laws were promulgated by the President, Franklin D. Roosevelt, which provided for retirement benefits to workers, price control of commodities, municipal bankruptcy laws and laws relating to the working conditions of labour,” stated the affidavit.
According to the document, the people in America were not prepared to accept the court’s decision and, therefore, voted Roosevelt back to power. On his return, Roosevelt had “threatened to appoint justices who will not undertake to override the judgement of the Congress on legislative policy”.
But the need did not arise, as the judges themselves reversed their earlier views and upheld each one of the laws passed subsequently.
An issue of policy
On the four points in the tribunals legislation struck down by the SC, the government maintained that each one was an issue of policy. It sought liberty to “demonstrate that the concept of independence of the judiciary has no relevance to the four issues of policy set out earlier”.
According to the government, if one “applies mind” to either of the four provisions, one is left confused if told that all this relates to the independence of the judiciary. “It has no relationship to independence,” the affidavit submitted. Independence, it explained, would be affected only if the executive is able to control the will of the member or the chairperson of the tribunal.
“With judicial dominance in the SCSC, which recommends the continuance or re-appointment of members, whether for four years or five years, these fears are unfounded,” it said.
Referring to a 1965 US Supreme Court judgment in a birth control case, the affidavit added: “…a jurist is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.”
(Edited by Arun Prashanth)