Supreme Court rightly distanced itself from ‘social-distancing’. It’s the executive’s call

Courts should realise the limits of their power and work within them. The elected representatives should be left to do what is expected of them.

The Supreme Court of India | Manisha Mondal | ThePrint

Hearing a PIL, which sought closure of all places of worship in India during the COVID-19 pandemic that has forced the Narendra Modi government to put the country under a 21-day lockdown, the Supreme Court bench headed by Chief Justice S.A. Bobde refused to pass any order, stressing that it couldn’t give directives it couldn’t implement.

It was heartening to hear these words. But the realisation on part of the Supreme Court may have come a little too late.

As anybody, particularly the wise judges, would know, the reason courts mustn’t accept petitions like these is that the Constitution bars them. There’s a very thin but strong line that separates the domains of the Judiciary and the Executive, and our judges often cross this Lakshmanrekha, attracting the charge of trying to run the country.

History is replete with examples of how our judges threw caution to the wind and appropriated the job of governance—mandated to the Executive under the Constitution. It doesn’t stop at that. There have been several instances of judges also trying to make or amend laws, another responsibility the framers of the Constitution had left for the Legislature to perform.

A case in point

There have been numerous cases where the judiciary burnt its fingers and cut a sorry figure after its orders remained unimplemented.

A case in point being the landmark Prakash Singh versus Union of India judgment. Almost 14 years after the judgment, functional autonomy for India’s police forces continues to be a figment of our imagination, with recent missteps and politically-aligned decisions by the police in Uttar Pradesh, Delhi and some other states clearly exposing the faultlines.

Appointments of Director General of Police (DGPs) remained mired in controversy – the most recent example being Punjab where the appointment of Dinkar Gupta was struck down as illegal and arbitrary.

Fixed tenures for Station House Officers (SHOs) and District Superintendents of Police (DSPs) remain a pipedream. The recommendation to constitute State Security Commissions for each state, a step that could have prevented large-scale political intervention in police work through pulls and pressures, have also remained unimplemented.

Setting up of Police Establishment Boards in every state to ensure transparency in transfer, postings and promotions of police officers has also gone unnoticed.

Every six months or so, the Supreme Court revisits its directives, makes cursory noises, which have little effect on the executive, and then it is silent again till the next big controversy.

SC’s activism

Not many can forget the controversial role, mainly through statements in open court by judges that the highest court of the land played in effectively sounding the death knell of India’s fledgling telecom sector.

And what happened to the recovery of investor money from Sahara Group, one that the Supreme Court went out of its way and turned it into an issue of great public importance, and for which, Subrata Roy was even sent to jail? Did he transfer all the investor money in to the account of the Securities and Exchange Board of India (Sebi)?  The answer is no. But, the court has moved on to other pressing issues.

Every time the Supreme Court gets involved in issues that were best left to the Executive, it also raises the stakes for itself, sending a misleading message to Indians: if every other pillar of the state fails, the courts are there to step in and set things right.

In doing so, the court fails to meet the often outlandish expectations of the public, thereby losing its prestige and the public’s faith in it.

The constitutionally permissible job of the Constitutional court is to be the final arbiter of the Constitution and also ensure that the rights of no citizen is breached by a brazen government. But, in recent times, it is in performing this job that the courts, especially the Supreme Court has been found wanting.

When SC thought to set the course right

In its May 1989 judgment in Asif Hameed and others versus State of Jammu & Kashmir & others, the Supreme Court cautioned against the perils of courts getting into the domain of the Executive.

“The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary,” the bench stressed.

Noting that though the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers had meticulously defined the functions of various organs of the State. The bench noted that “Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution”.

“No organ can usurp the functions assigned to another… The functioning of democracy depends upon the strength and independence of each of its organs. The legislature and executive, the two facets of people’s will, have all the powers including that of finance. The judiciary has no power over the sword or the purse, nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive… While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.”

Referring to cases where state action is challenged, the bench said that while doing so the court must remain within its self-imposed limits.

“The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the Executive in matters of policy or to sermonize quo any matter which under the Constitution lies within the sphere of the legislature or Executive, provided these authorities do not transgress their constitutional limits or statutory powers,” it ruled.

Time has come for the courts to realise the limits of their power and work within those limits. The elected representatives, who have to face the public every five years, should be left to do what is expected of them. If the courts continue to try and usurp the work of the Executive, the brickbats won’t stop coming their way.

The author is a senior journalist. Views are personal.