Timely judicial intervention has often helped shape important policies. But recent judicial efforts to oversee legislative action have boomeranged. The medical education mess has even implicated two judges in bribery cases.
ThePrint asks: Has the judiciary’s overreach in cricket, medical education, among others, damaged its credibility?
These court interventions are piecemeal and exhibit the idiosyncrasies of some judges
Manwendra Kumar Tiwari
Assistant professor, Dr Ram Manohar Lohiya National Law University
The perceived ‘judicial overreach’ is not, per se, a bad thing. Denying it absolutely would be emboldening the state theorising, which wants to keep all the legal domains of power under the clutches of the executive.
This is how one can justify the use of PIL in India as something which enables the courts to venture into the realm of ‘desirability of something’ over and above the traditionally understood judicial confines of ‘permissibility of something’. But as it is evident from this, a judicial intervention bordering on overreach, which is bereft of this underlying idea, is simply entering into an arena of desirability without the consequent impact of sobering the state power.
The judicial intervention by the Supreme Court of India in relation to matters of cricket administration in India and regulation of medical education, including the admission policy, is largely reflective of this judicial approach wherein the courts rather than acting as catalysts for some desirable and pressing outcomes, are actually arrogating to itself the role of a panacea institution.
This is primarily the reason why such interventions cannot be explained by way of principles or even by way of policies. These interventions, therefore, are piecemeal and exhibit the idiosyncrasies of the individual judges. This damages the credibility of the courts. To quote Prof. Upendra Baxi from a 1993 article in the Journal of the Indian Law Institute, “theirs (judges) is not the will to power; but the will to reason.”
Overreach is negatively impacting regular judicial decision making
Yes, it does hurt the judiciary’s overall credibility. The judiciary should not foray into policy making and its implementation. Such roles are purely within the domain of the legislature and the executive. Doing so creates many problems.
First, it upsets the balance of powers between the three organs of the state. The judiciary is tasked with reviewing the actions of the legislature and the executive to ensure that they meet the constitutional mandate. If the judiciary itself takes over the role, no other institution exists to review such action thereby upsetting the separation of powers, as well as denying citizens their valuable right to seek judicial redressal.
Second, the judiciary is not equipped to make such decisions. Judges are, by training, arbiters of the law and fact based on legal reasoning. Yes, sometimes in the interpretation of the law, there are policy choices involved. However, that is different from actually making policy decisions on a regular basis involving complex facts with multiple stakeholders. Judicial reasoning and process are not equipped to deal with issues such as day-to-day practicalities and difficulties of policy decisions.
Third, the appointment of committees to supervise statutory or private bodies amounts to creating a new hierarchy of institutions and regulations. There is no accountability built in with respect to the functioning of such committees similar to the accountability of other statutory institutions. What happens if one of these committees violate the rights of citizens?
Fourth, and most importantly, such overreach is negatively impacting regular judicial decision making, both in terms of time and reasoning. The judiciary is increasingly guilty of straying from the path of judicial reasoning and discipline in regular hearings which directly affects the promise of fairness, equality and justice that a judicial hearing seeks to deliver.
An active judiciary may be good, but an activist judiciary is not so good
Vice-Chancellor, NALSAR University of Law, Hyderabad
A five-judge bench of the Supreme Court led by Justice Anil Dave in 2016 not only recalled the controversial 2013 three-judge bench decision of the Supreme Court scraping common medical test by the MCI but also ordered a fresh hearing of the matter. What is surprising is that the bench made NEET mandatory for all states, universities including private unaided and minority universities, even prior to the regular hearing in the matter. The court has really taken away ‘right to administration’ of minority and unaided private institutions and curtailed their autonomy. Centralised counselling is contrary to the T.M.A. Pai judgment.
The interim order basically had the effect of a final judgment and this way of converting a minority opinion into an order of the court in a subsequent case, without arguments on the merits, was indeed unprecedented.
Then the court ordered the Tamil Nadu government to ensure that people do not protest against its order. This certainly lowered the prestige of the court.
The court did not even accept the Government of India’s repeated requests of permitting state governments to conduct their tests at least in 2016. Court’s insistence to conduct NEET from that very year violated the principles of separation of powers. Such decisions should ideally be left to the government of the day.
Most students were under great stress due to NEET’s implementation of that very year. All political parties opposed this decision as well. The court failed to take into account requirements of our federal polity.
Due to centralised counselling, a number of medical seats remain vacant which is a national loss. These are policy decisions and are thus the government’s prerogative. An active judiciary may be good, but an activist judiciary is not so good.
In matters of public interest, the court often does not miss the chance to grandstand
Special Correspondent, ThePrint
On Wednesday, a ‘concerned’ Supreme Court heard a case involving the rape of an eight-month-old baby by her 28-year-old cousin. A public interest litigation had been brought before the court.
It directed two top doctors to supervise the situation and shift the baby to AIIMS, if necessary. It also ordered the Delhi Legal Services Authority to assist in the case.
However, gut-wrenching and regretful the situation is, this wasn’t a case that required the court’s intervention. But when a public interest litigation was brought before it, the court did not miss the chance to grandstand.
In this case, given the issue, the court’s use of time or resources won’t be questioned. But similar attempts were made in two cases in which the court’s role and its efficacy are now being questioned: overhauling the Indian cricket administration and medical education in the country.
The Indian cricket board and the Medical Council of India have time and again failed, and refused, to implement orders of the court, but that cannot be an explanation for the debacle. In an adversarial dispute, the court delegated its powers to its B-team and expected the parties to fall in line.
Instead of identifying the rot, appointing panels headed by former chief justice R.M. Lodha (in both cases) to fix it, and failing miserably, the courts should have issued orders to the government to bring changes as it deemed fit.
The courts should now focus on ensuring the executive does its job, to ensure an honourable exit in these cases.
Compiled by Deeksha Bhardwaj.