The saying “Power corrupts and absolute power corrupts absolutely” needs ingemination in the present context of the judiciary exercising its all encompassing powers rampantly. Today, we live in an atmosphere where finger-pointing has become a norm for citizens, public figures, authorities and institutions of the State. With the second wave of COVID-19 stumping the government and the people of India, the already chaotic atmosphere has only intensified. In such chaos, the judiciary has been hearing various kinds of petitions which include the Made-in-India Public Interest Litigations (PILs) as well. True to its role as a guardian of rights, it has been hearing various cases involving COVID-19. However, not all actions of the judiciary have seemed to be reasonable, especially those which have involved scandalous remarks against other constitutional bodies.
While the court is said to be either too conservative or too liberal depending on which side of the ideological spectrum one resides, the larger picture often gets ignored. There are two larger issues that have arisen in the context of judicial handling of COVID-19 pandemic. First is the extent to which the judiciary can intervene when it comes to issues pertaining to the exclusive domain of the executive. Second, the language used by the courts in making observations which are not considered to be a part of official record.
JUDICIAL ADVENTURISM: THE NEED TO WITHDRAW
Judicial interventions through various processes which includes the writ jurisdiction of the apex court and high courts play an important role if it is invoked in a prudent and reasonable manner. One will have to consider the judicial actions in the recent past to categorize it as a function expected from a judicial organ. Starting from deciding what should be the distance between a highway and a bar to hearing petitions on vaccine pricing, one may ponder if the judiciary has more often than not crossed the Lakshman Rekha.
While it is true that the judiciary intervenes with a bona fide intention, there are some areas which require subject matter expertise and the judiciary is not always equipped for the same. The executive on the other hand has a sophisticated administrative machinery, not without its own limitations. Nonetheless, it is noticeable and only logical for the executive to be better equipped than the judiciary since such functions are rightly performed by the former. One may still assert that the judiciary can receive such inputs through assistance of committees appointed by the court itself. However such appointments of a committee may still not be as robust as the administrative machinery. More importantly, at times it also transforms certain non-controversial issues into controversial ones. It also drags the judiciary into roles it need not perform. For instance, we have noticed that the committee appointed by the Supreme Court regarding the farm laws was found to be unacceptable by one party. Here, on a closer look it becomes certain that it is not the function of the court to sit over political issues between the government and interest groups. Neither did the interest groups seek such a prayer from the court, nor did the government recommend it. But once it was done, the interest groups alleged that the committee members have been favourable to the government’s stand. In such instances, at least in hindsight it can be reasoned that it would have been prudent for the court to have exercised judicial restraint.
Legally speaking, the Supreme Court itself in the celebrated case of Kesavananda Bharati v. State of Kerala has held that Separation of Powers is a basic feature of the Constitution which cannot be altered. So, it implies that each organ of the State performs the functions it has to without transgressing the boundaries of the other. It may sound ironical when the courts pull up the governments for non-performance of certain duties while the governments cannot direct the courts to resolve the huge pendency of cases. One may point out to Article 142 as the reason for such scenarios to exist. In short, the provision provides an all encompassing power to the apex court to pass such orders necessary to do ‘complete justice’. However, as the court itself has held in various judgements that judicial restraint is necessary for the administration of justice, it becomes important for the courts to not treat Article 142 like a ‘Kamadhenu’ from which unlimited power flows as Attorney General K. K. Venugopal asseverates.
Therefore it would be prudent for the courts to not intervene in matters like allocation of oxygen to different states by the Centre and pricing of vaccines. If every single high court in the country passes orders directing the Centre to allocate more oxygen to the respective state, the government is bound to fail since the resource is finite and limited. Similarly, there is a dynamic economic angle as far vaccine pricing is concerned which is best left to the negotiations between the government and vaccine makers. Disincentivising the vaccine makers at this juncture does not bound well for the country as a whole which is aiming at self sustainability and requires rampant increase in vaccine production.
UNWARRANTED OBSERVATIONS NEED A RETHINK
The apex court rightly held “There is need for judges of superior courts to exercise restraint and not make off the cuff remarks”. The court reasoned that “Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos”. The matter had arisen before the Supreme Court on an appeal by the Election Commission after the Madras High Court had orally observed that the Commission should be held for murder charges for its handling of elections during the pandemic.
The Allahabad High Court went one step further and observed “We are at pain in observing that death of Covid patients just for non supplying of oxygen to the hospitals is a criminal act and not less than a genocide”. To say the least, a law student would also understand that the term genocide cannot be used indiscreetly. It is a grave offense which places an enormous burden on the person alleging the same. While one may argue that such observations are not a part of judicial records and cannot be taken seriously, it would be mindful for the courts to understand that in the age of digital media, such observations get reported within a matter of few seconds. At times, it becomes a juicy headline for the media resulting in defamation of other constitutional bodies and lowering their value in the eyes of the public.
RIGHT TIME TO STEP BACK AND REVIEW
While there has been a tectonic shift in fundamental thinking of the government which was evident in the reforms announced in the last one year, the judiciary too can review its role for a 21st century India. There can be no doubt that judicial intervention is necessary to ensure that the executive performs its functions effectively in the interest of the public. But that does not pave the way for the judiciary to undertake executive functions. Today, we have a ‘judicial executive’ which does not limit its function to administration of justice. As legal luminary Harish Salve puts it, “the courts have become institutions of governance”.
As with the concept of equilibrium in economics, we may not be able to determine the exact boundary or the judicial Lakshman Rekha. However, like how non-realisation of equilibrium does not deter the economists from framing policies to achieve that state, similarly the judicial quest for determining the Lakshman Rekha should not stop. At the very least, we would reduce the unnecessary acts of judicial adventurism and cultivate prudent judicial discipline.