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In India, the Supreme Court’s problem is not only judicial overreach but also underreach

Today, the judiciary is often doing with impunity what the executive could not or can never do, since it is answerable to the people.

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There can be no dispute that the judges of the high courts and the Supreme Court of India do wield tremendous powers. However, power comes with a price which bestows huge responsibility and calls for strict adherence to dos and don’ts. Therefore, they must be made accountable not only in respect of their personal conduct and integrity, but also in regard to the judicial verdicts that they deliver, which befuddle many a time and are thus incomprehensible, to say the least.

The need for judicial accountability has increased all the more as the judiciary is, nowadays, performing not only judicial functions, but virtually executive functions as well, for which the government is accountable to the people. Articles 141, 142, and 144 make the Supreme Court the most powerful institution in the country, and Articles 32 and 136 also confer wide powers on it. But such unbounded powers without any concomitant accountability tend to make it an autocratic and narcissistic institution. Unmindful of the budgetary and other vital implications, it passes orders which are simply not implementable, such as the one for the interlinking of rivers, a policy decision which falls clearly in the domain of the executive.

It is able to do all this because it is not held to account for all such acts. Today, the judiciary is often doing with impunity what the executive could not or can never do, since it is answerable to the people. Courts, instead of protecting the rights of the insulted and the injured, are pushing them further into the margins by handing out decisions such as demolishing slums and removing pavement dwellers, banning cycle rickshaw in certain areas of Delhi, removing hawkers from the streets of Delhi and Mumbai, thereby violating the fundamental right to shelter and to carry on any occupation or trade conferred by the Constitution of India. The Supreme Court has not hesitated to interfere even with the military operations which are considered sacrosanct.

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In 1993, when the military was carrying out its operations to flush out militants from the Hazratbal shrine in Srinagar, it restricted the food supplies to hostages as a matter of strategy. The Court ordered that the provision of food of 1,200 calorie value should be supplied to hostages. Reacting to this, an army General wrote: ‘For the first time in history, a Court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.’ The Supreme Court went overboard to mitigate the sufferings of people reeling under severe drought and directed the Centre to set up a National Disaster Management Fund (NDMF) within three months under Section 47 of the Disaster Management Act, 2005, which provides for it. Though the Court’s concern for the drought-affected is laudable, its direction was per incuriam (through lack of care, without the basis of law) as Section 47 had not been notified then.

In 2007, when Prime Minister Dr Manmohan Singh spoke of judicial overreach it created a national hubbub that the executive and the judiciary were headed for a face-off. Dr Singh’s comment was incontrovertible but incomplete, as it presented only one side of the coin. It is not only a problem of overreach, where the judiciary oversteps, breaching its boundary but also a problem of under-reach where courts shirk their responsibilities, despite having the jurisdiction, resulting in monstrous injustice. All this is also taking place because judges are not made accountable under our constitutional framework.

The habeas corpus case is the most glaring example of this judicial abnegation, wherein the conduct of judges reflected that their sole concern was to get elevated as the next chief justice of India (CJI) rather than discharging their judicial functions properly.

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In the Narmada Bachao Andolan case, the Supreme Court stayed the construction of the Sardar Sarovar dam on the plea of the Narmada Bachao Andolan that several legal formalities including environmental clearance were not observed and that no plans had been made for the rehabilitation of the displaced people whose lands had been submerged. The question was not whether the dam should be constructed. The Court was only asked not to allow the respondents to raise the height of the dam till the people displaced were properly rehabilitated. But the Court’s verdict that came after seven long years said that the construction of the dam could proceed simultaneously with the environmental impact studies. This simply nullified the very purpose of laying down the requirement of getting the environmental impact assessment or cost benefit analysis of the project done, which was a mandatory legal requirement. Taking the affidavits filed by the state governments regarding the promise of rehabilitation in future at its face value, it permitted the height of the dam to be raised. There are other instances wherein the rights of the people have been whittled down and justice denied.

It is a common knowledge and experience of all those who are aware of the day to day proceedings in the Supreme Court that more than 90 per cent of the petitions/appeals filed before it under Article 136 of the Constitution of India are dismissed, and the Supreme Court does not even write a single sentence in its orders explaining the reasons for such dismissal. And once a petition is dismissed, the petitioner cannot move the court again. D.C. Pandey has rightly pointed out: The current practice of disposing of matters has hardened against reopening matters in the interests of justice even when non-speaking orders have been passed. To this extent the rule (laid down) in Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457, has become almost a dead letter. Under the rule, a petition ‘dismissed in limine without a speaking order … cannot be treated as creating a bar of res judicata’.

The courts have been treating a non-speaking order as raising a bar analogous to res judicata.

Sometimes an order passed without any application of mind has been hardened into res judicata due to lack of vigilance on the part of the counsel or obduracy on the part of the judge. The Supreme Court returned the reference sent by the president under Article 143 of the Constitution with respect to the Rama Janmabhumi-Babri Masjid dispute on the issue as to whether a temple was in existence at the site in Ayodhya where the Babri Masjid stood later on. A majority of three judges held that the reference could not be taken as an effective ‘alternate dispute settlement mechanism’. So, it could not be permitted to substitute for the pending suits and legal proceedings. The Court felt that the reference had become ‘superfluous and unnecessary’.

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The two judges (in minority) opined that the Court was entitled to decline to answer a reference, but then it must give reasons for doing so. The grounds given by the Court for declining to answer the reference were, (a) it favoured one religious community over another, (b) the Union Government did not propose to resolve the dispute according to the court’s opinion but just wanted to use it as a springboard for negotiations, (c) the main protagonists on both sides of the dispute had not appeared before the Court to lead evidence or for cross-examination, and finally, the process would invite criticism from either or both sides.

The reasoning adduced by the Court for returning the reference is baffling as it did so after obtaining an undertaking from the Union Government that it (government) shall abide by the opinion of the Court, though the opinion given under presidential reference is not binding per se. Furthermore, why should the apex court fight shy of giving an opinion just because it may favour one religious community or may be subject to criticism which it could brave out. After all, the appeal against the verdict of the Allahabad High Court which created brouhaha, is pending before it.

This excerpt from Justice vs Judiciary by Sudhanshu Ranjan has been published with permission from Oxford University Press.

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  1. Justice is the means by which established injustices are sanctioned. Black robes, white lies. Small men, big egos. LYING, DISTORTION AND OTHER FORMS OF INTELLECTUAL DISHONESTY ARE ENDEMIC AMONG JUDGES. Vijay Kumar Agarwal, Ex-IAS. 9560172716.

  2. Increasingly everyday some or the other order of courts causes problems which need to be accounted for to some agency. Nonprovision of machinary is seriously affecting credibility of institution, Therefore legislature should provide for accountability of judiciary

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