Daily Times

The Supreme Court has lately employed its original jurisdiction unsparingly, on the sole pretext, it seems, that vacuum created by inaction or omission of the executive must be filled by the judiciary. This vacuum theory runs contrary to the Constitutional principle of the separation of powers, that limits the judicial authority, notwithstanding the perceived vacuum (as determined by the judicial officers), under our scheme of the Constitution.

Judicial review is not guided by any executive vacuum but by principles enshrined in the Constitution. The exercise of judicial review by the high courts is always subject to the Constitution, with fetters spelled out in sub articles 1, 1(a) and 1(c) of article 199. These constraints, inter alia, provide that to avail the extra ordinary relief in the Constitutional jurisdiction of the high courts; a petitioner must spell out her grievance or locus standi, satisfy that there is no other adequate remedy available and the respondent (to whom writ is to be issued) meets the functional test i.e. it performs functions in connection with affairs of the federation [functional test not required for enforcement of fundamental rights]. With time, superior courts have significantly liberalized access to courts and through expensive interpretation, such as on issues of locus standi, made the courts more accessible.

Supreme court under article 184(3), that concerns its original jurisdiction (or suo motu powers), like the high courts under article 199(1)(c), can pass orders as may be appropriate for the enforcement of any of the fundamental rights conferred by chapter 1 of part II of the Constitution. The jurisdiction under article 184(3) is conditioned by three pre-requisites: there is a question of public importance; such question involves enforcement of the fundamental rights; and fundamental rights to be enforced are conferred by chapter 1, part II of the Constitution. Even though under article 184(3) there are no trappings of sub articles 1, 1(a) and 1(c) of article 199, the three-tiered test must be met.

Despite the liberalization in access to Constitutional jurisdiction, these hurdles are not easy to surmount. The framers had envisaged to reserve the relief in Constitutional jurisdiction for extra-ordinary circumstances. Even if the requirements are met, which is an uphill task, the Courts under our scheme of the Constitution, must have regard to Constitutional principles of separation of powers along with the associated doctrines of deference and justiciability.

Separation of powers, in all countries with written constitutions, is an overriding concern before exercise of judicial review. This is an inherent check on the discretion of the courts. Judicial deference ordinarily leaves an administrative authority free to answer a question or exercise its discretion in more than one way. It essentially is a requirement of comity that depends on value of second guessing a decision by an independent decision maker.  In the US, the case of Chevron, developed a structured approach towards deference that can be looked by the courts here going forward.

Vacuum theory is an overtly simplistic concept that enables the apex court to take on any brief presented to it without regarding the roles of the coordinating branches. The court needs to reassess its focus and cautiously charter its future course

Justiciability is another check on the exercise of judicial power. The courts do not entertain political questions, enter into policy debates, pass decrees on matters of foreign affairs or second guess decisions on national security and simply refuse or decline jurisdiction. These doctrines act as guides for the courts to exercise judicial review sparingly, regardless of any vacuum created by the executive. “All power is, in Madison’s Phrase; ‘of an encroaching nature’. Judicial Power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint” penned Justice Frankfurter in Trop vs Dulles. Judicial restraint, as a rule, enhances the legitimacy of the Court and its decisions.

Judicial restraint is unpopular yet again and so are the inherent constraints placed on the courts to render opinions on different issues. The superior courts’ opinions don’t adequately discuss the issues of deference and justiciability in a structured manner. In particular, in exercise of original jurisdiction by the Supreme Court, the default position to act must invariably be aimed at only safeguarding the rights of the underprivileged or socio-politically irrelevant classes of the society. In all other cases, the Constitutional principles of deference and justiciability should prevail.

If the courts are so much as perceived to be undermining both the legislature and the executive then it does not only risk their own legitimacy and dampen the public confidence but with organs of the government at odds with one another, democracy as a whole loses.  Our apex court must repose trust in the political processes; that go beyond the ballot and include contributions of public debates, roles of; opposition, media, public intellectuals, youth and independent bodies for cause; that assess the performance of the executive and inform the socio-political culture.  Hercules like, supreme court must not offer Atlas to carry the weight of heavens.

Vacuum theory is an overtly simplistic concept that enables the apex court to take on any brief presented to it without any regard to roles of the coordinate branches.  The court needs to reassess its focus and cautiously charter its future course. In Murder in the Cathedral, TS Elliot, as he dwells on the idea of temptation and martyrdom side by side, concludes: “The last temptation is the greatest treason. To do the right deed for the wrong reason.”

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, April 10^th 2018.