India

Circumspection, My Lords

Supreme Court

kapil sibal

   Kapil Sibal

With the power of judicial review, the expanse of our Supreme Court’s jurisdiction is unmatched compared to other judicial forums around the world. The greater the power, the greater the responsibility in its exercise.

The Supreme Court has, over the years, created milestones in judicial pronouncements resulting in historic shifts, positively impacting the nation in its onward march for justice. The genesis of Public Interest Litigation in listening to the voice of the voiceless and giving access to the poor, the marginalised and the weak is a unique experiment to be lauded. It has also effectively, on occasion, dealt with the corroding effect of corruption.

But for the Supreme Court’s proactive role, it would have taken many more years for Compressed Natural Gas (CNG) to be the fuel of preference in the transportation sector. Dealing with bonded labour, neglected children, the non-payment of minimum wages to workers, violations of labour laws, sexual harassment at the work place, harassment while in police custody, are a few examples where the court has constructively intervened.

These are positives, which earned the institution kudos. But in some areas, the Supreme Court is ill-equipped to make judicial pronouncements. The recent decision invoking Article 142 of the Constitution of India, prohibiting the sale of liquor in establishments, restaurants, vends, etc., within 500 metres of national and state highways makes one question the role of the Supreme Court. Recognising the desire of the court to save lives lost due to drunken driving, such judicial diktats are not the outcome of a legal suit between parties. The location of hotels, restaurants or vends, selling liquor is a pure policy decision, best left to governments to take.

There is also a constitutional issue which arises. Should the Supreme Court, given the fact that the subject matter of liquor is within the exclusive domain of state legislatures, through judicial diktat, impose a decision on state governments? My objection is not limited to this constitutional issue. I am more concerned about the consequences of such judicial diktats.

The Supreme Court, when issuing this directive, was perhaps not fully equipped with all the facts. That the states could have moved the Supreme Court and informed it of the consequences of its decision is indeed proof that the decision was taken without being fully cognisant of the facts. That hotels would lose their five-star ranking is one such consequence. That millions associated with the liquor business would lose their jobs is another consequence.

That the state will lose a vital source of revenue, which would become part of the Consolidated Fund of the state for multifarious state programmes, is yet another consequence. Public interest is a very unruly horse.

If public interest becomes the raison-d’être of decision-making, then the contours of the constitutional concept of the separation of powers will be blurred. The judiciary might then be persuaded to deal with every ill that confronts this country.

While we applaud the judiciary in exhorting the government to listen to gender concerns, malnourished children and its role in asking the government to respond to the plight of farmers in Tamil Nadu, at the same time, we question the freewheeling use of Article 142 of the Constitution. On occasion, while exercising this power, personal liberty is at stake and the rule of law in jeopardy. Sometimes, the use of Article 142 has economic consequences that tend to destabilise the economy.

The cancellation of all telecom licenses to serve the cause of public interest without individual culpability jeopardised the survival of entities. Rising non-performing assets (NPAs) are, to some extent, the result of judicial decisions. Courts may not, or may choose not to, consider their impact on the economy. The telecom sector is, till today, reeling under the after-effects of the Supreme Court judgment. The consequences of cancellation of all allocations of coal mines have adversely impacted the balance-sheets of public sector banks. One of the consequences of such omnibus cancellations is defaults on bank loans. The consequent NPAs impact the economy.

The decision to ban the sale of diesel cars with an engine capacity of 2000 cc and above is yet another instance of judicial overreach. This, in fact, jeopardised possible foreign investment. The decision was later reviewed. In the long term, such decisions dampen the spirits of foreign investors.

We live in a very complex world in which the media is at the forefront of public discourse. Social media, yet another unruly horse, with its outreach, impacts the lives of millions. Populism is at its height. The contours of civilised discourse have vanished. Economic interests sometimes drive public discourse. News is occasionally motivated. For the court to be completely isolated from this environment is not easy. Most of us tend to be swayed by what we read. Judges are not superhuman. They, too, are mortals. This is why they have to be exceptionally careful in rendering decisions, which cause unintended consequences.

Several judgments of the court reiterate the principle that recourse to Article 142 of the Constitution is inappropriate, wherever a statutory remedy is available. This has not deterred the Supreme Court from taking the cover of Article 142 in its desire to do justice. The problem is that there is no court above the Supreme Court. Lawyers, who practise in the Supreme Court, day in and day out, are seldom willing to stand up and question this practice.

It is time to stand up and for judges to be more circumspect when taking decisions beyond the apparent contours of their jurisdiction.

(Kapil Sibal is a senior Congress leader and former Union Law Minister and a lawyer.)
 
(Article was first published in Indian Express, dated April 21)

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