SC-appointed committees have powers to virtually run executive affairs, sidelining the government and elected executive bodies
Should the Supreme Court use its power to decide whether firecrackers should be burst on Diwali? Would the Hindus be right in feeling aggrieved that mass slaughter on Bakrid, probably a worse environmental and health hazard, should have been banned even earlier?
Here is an illuminating passage on the issue of judicial overreach from a very famous House of Lords Judgment, Sharp vs Wakefield (1891), which even India’s Supreme Court has followed it in many judgments right since 1955, and eloquently discussed by the Supreme Court through Justice Arijit Pasayat in 2004.
Lord Halsbury, LC considered the nature of discretion (administrative and judicial): “Discretion means, when it is said that something is to be done within the discretion of the authorities, that that discretion is to be done according to the rules of reason and justice, not according to private opinion: . . according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”
Here are three cases of SC-appointed committees with powers to virtually run executive affairs, sidelining the government and elected executive bodies. The SC chose to ignore the ratio laid down in Sharp v Wakefield in these cases, as it did with the firecrackers case today.
First, it appointed an empowered committee in the matter of environmental cases. The TN Godavarman case has seen more than 100 interim orders passed to consider recommendations of the empowered committee, creating a parallel executive apparatus that was never envisaged by the founding fathers.
Second, the much-hyped BCCI case. The original case related to betting in IPL. The SC appointed a committee under Justice Lodha to recommend measures for reform. Except for betting, it recommended every possible measure to reform BCCI. And the question of betting was referred to Parliament!
BCCI is arguably the most successful sports body in the country, which must receive credit for taking Indian cricket to the top of world cricket, and making BCCI a world power in cricket. Justice Lodha made recommendations of sweeping nature that bordered on the extreme. That states like Manipur and Mizoram with hardly any cricket should have one vote as a full member, and Mumbai as a 41-time national champion should get a vote once in three years, is just one example.
Last year, BCCI created a joint team of five northeastern states to play in the U-19 tournaments. They lost every match by an innings. Then the SC outsourced its own powers to the recommending body, making an already piquant situation impossibly problematic. To create further confusion, a Committee of Administrators has been appointed. The states do not know today who should be contacted in the BCCI.
The teams have continued to do well, because they are a product of decades of institutionalised system. Sri Lanka’s cricket suffered when they expanded their first class structure to include teams that were not competitive. In India, it is being done through judicial intervention. The impact of all this will be obvious in a few years. At another level, India’s clout in the world cricket has already gone down.
Third, is the SC intervention to form a committee to run the Medical Council of India. The experiment proved so disastrous that the committee had to be replaced by a committee of experts, but not before allegations of every shade had sullied both the appointee as well as the appointer.
All these instances seem to indicate distrust for democratically elected institutions. How far can it go? Can TCS or Infosys be similarly taken over? Can a state or central government be replaced by a committee of administrators?
What is even more disturbing is the message that it sends to the executive. If a prime minister decides to make an executive overreach in a similar vein, and starts regulating judicial tasks, how would our democracy survive? Emergency was a response by an autocratic PM to a dubious judgment by a high court that overturned her election on flimsy technical grounds. It has already happened in Turkey, and Venezuela, within the last two years. In Pakistan, such overreach only resulted in the Pakistan SC becoming an appendage of the Pakistani Army, while the Bangladesh PM threatened the CJ with defiance of his orders. I dread such situations, because the judiciary is indeed the ‘sentinel on the qui vive’, and a check against arbitrariness immanent in the executive.
The time seems to be ripe for creating another institution having legal scholars, and not just lawyers and judges, that would hear matters that involve judicial overreach, and judiciary’s conflicts of interest. Independence of judiciary does not mean that there cannot be a fourth tier above Supreme Court.
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