Restraint, activism and overreach

V. VENKATESAN

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THE Chief Justice of India, Justice P. Sathasivam said at a function recently that some amount of tension between the judiciary and the other two organs of the state, namely, the executive and legislature is desirable and healthy.1 Without elaborating, his use of the word ‘tension’ to describe the relationship of the judiciary with the other two organs of the state suggests some degree of trust deficit, leading to a concern that the judiciary may try to encroach on the domains of the other two, thereby weakening the system of checks and balances inherent in India’s scheme of separation of powers which, according to many constitutional pundits, only permits marginal incursions, and not usurpation of the essential functions of one organ by another.

While this trust deficit is manifest and eloquently articulated in the public discourse in the case of civil and political rights (CPR), a similar vibrancy is missing in the discussion of the role or lack of judicial intervention in matters involving the realization of economic and social rights (ESR). This has led to genuine concern that not all our judges are sufficiently sensitive to the demands of ESR, resulting in a lack of progress in their realization as compared to significant and substantial strides in the achievement of CPR.

Is our judiciary more activist than it should be in matters involving CPR, and less activist than expected when it comes to realizing ESR? An answer would involve a far more rigorous study than what is possible in this article. Yet, the question is relevant because it is now fairly well settled that the courts can circumvent the non-justiciability of the Directive Principles of State Policy (ESRs), by showing how they could be used to expand the content of Fundamental Rights (CPRs). This article examines the activist quotient of four recent decisions of the Supreme Court involving CPRs, and asks why our courts shy away from showing similar interest in matters impinging on the enforcement of ESRs.

 

The Supreme Court’s recent judgment in Lily Thomas v. Union of India on 10 July 2013, holding Section 8(4) of the Representation of People’s Act, 1951 unconstitutional, is one such verdict with a seemingly high activist quotient. Section 8(4), before the Supreme Court held it ultra vires, had provided that the disqualification of a Member of Parliament or state legislature on the ground of conviction would not take effect for three months from the date of conviction, and if in that period the member files an appeal against conviction or sentence in an appellate court, then until that appeal was disposed of by the court.

Interpreting the relevant constitutional provisions, the two-judge bench comprising Justice A.K. Patnaik and Justice Sudhansu Jyoti Mukhopadhaya, held that if because of a disqualification a person cannot be chosen as a Member of Parliament or state legislature, for the same disqualification s/he cannot continue as a Member of Parliament or the state legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that disqualification for both a person to be chosen as a member of a House of Parliament or the state legislature or for a person to continue as a Member of Parliament or the state legislature has to be the same (paragraph 16 of Lily Thomas).

Recent academic literature suggests a 17 point scale to quantify the degree of judicial activism in a given decision.2 If a scholar uses this scale, Lily Thomas is likely to get a very high score on judicial activism. First, by holding that Parliament lacked the legislative power to enact subsection (4) of Section 8 of the RPA, the court held that this issue was not at all considered by the constitution bench of the court in a previous decision (K. Prabhakaran v. P. Jayarajan) which has a bearing on the issue. Indeed, counsel for the Union of India relied on the court’s ruling in this case to argue that the previous bench had approved the purpose behind Section 8(4) which, according to them, was not to confer an advantage on sitting Members of Parliament or of a state legislature, but to protect the house from instability in the context of governments surviving in power on a razor edge thin majority in the house.

 

The two-judge bench in Lily Thomas did not disagree with the UoI counsel that the previous five judge bench had approved the purpose of Section 8(4) in K. Prabhakaran; Justice Patnaik who wrote Lily Thomas, however, insisted that the K. Prabhakaran bench did not go into the competence of Parliament to enact a law, which was contrary to the constitutional provisions. Yet, insofar as Lily Thomas deviates from the settled legal position in K. Prabhakaran, the former has to be considered as activist. Some commentators rightly felt that legal propriety demanded that the matter should have been referred to a bench comprising more than five judges for an authoritative pronouncement, since the two judge Lily Thomas bench appeared to have overruled the five judge K. Prabhakaran bench.3 

 

There are other parameters which make Lily Thomas more activist. It impedes the democratic process, as the court did not defer to the government’s claim that Parliament was competent to enact Section 8(4). As activist decisions are generally greeted by attempts to overturn them by the government through amendments, Lily Thomas too was sought to be resisted by the government which introduced the Bill No. LXII of 2013 in the Rajya Sabha on 30 August. After the bill was referred to a standing committee for consideration and report, the cabinet cleared the proposal to promulgate the same bill as an ordinance. Although the government backtracked from both the bill and ordinance in the face of opposition from within the political class and civil society, its discomfort with the judgment remains, and adds to the activist quotient.

It is debatable whether the reluctance of the Lily Thomas bench to consider the question whether Section 8(4) violates Article 14 guaranteeing equality makes it less activist. On the face of it, there is a violation of Article 14 as it discriminates between elected representatives and the candidates seeking an election by conferring the privilege of not suffering disqualification despite conviction on the former and denying the same to the latter. But the bench apparently thought it was unnecessary to go into it in view of the clear and unambiguous provisions of the Constitution which suggested that Parliament had no power to enact Section 8(4).

 

But the question whether it was a clever ploy to avoid the territory already traversed by K. Prabhakaran bench remains. Had the Lily Thomas bench considered the issue of inconsistency of Section 8(4) with Article 14, it would have found it impossible to overrule K. Prabhakaran, as it was a constitution bench comprising five judges, and as a result its decision on the other question, whether Parliament had the power to enact Section 8(4), would have become inconsistent with the finding in K. Prabhakaran.

Lily Thomas also has other attributes which could make it less activist: the high degree of support it enjoys from civil society, and the government’s decision to ultimately comply with it despite its initial reservations. Resistance from both civil society and the government to a judgment are considered important parameters suggesting activism. But in terms of the relative weight that one could assign to these different attributes, Lily Thomas can be safely described as high on activism.

It may be of academic interest to assess the degree of activism present in the Supreme Court’s other recent decisions. Its decisions in Jan Chaukidar4 and People’s Union for Civil Liberties5 equally appeared to be activist interventions, although analysts disagreed with their activist pretensions. In Jan Chaukidar, the same bench which gave the verdict in Lily Thomas on 10 July 2013, held that a person who has no right to vote by virtue of the provisions of subsection (5) of Section 62 of the RPA, 1951, is not an elector and is therefore not qualified to contest the election to the house of the people or the legislative assembly of a state. Subsection (5) provides that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police. The proviso to subsection (5) states that the subsection will not apply to a person subjected to preventive detention under any act for the time being in force.

 

Jan Chaukidar, despite its pretensions to ensure a clean polity, was considered regressive for it deprived and further limited the democratic rights of undertrial prisoners. It also has unforeseen consequences. For instance, it was pointed out that even if a sitting Member of Parliament or a state legislature is imprisoned, then he or she would lose the right to contest, and if they lose the right to contest, they would lose their right to continue as members as well.6 Other court watchers have pointed to the impracticability of the decision, and the complete absence of reasoning in the judgment.7

The Election Commission and the Union of India did not contest the petitioners either in the Patna High Court, which first decided in favour of the petitioners or in the Supreme Court, where it was appealed against by the Election Commission, as a matter of course because the High Court had given a verdict in the midst of an ongoing election, and the EC sought a stay of the order, in view of the electoral process which had already begun in Bihar. This is a curious appeal because the EC had expressed its agreement with the petitioner’s contentions.

Therefore, calling Jan Chaukidar an activist order would be giving it undue credit. It is significant that even though the Centre filed a review petition in the Supreme Court to belatedly contest this order, Parliament went ahead and successfully passed the Representation of the People (Amendment and Validation) Bill, 2013 to provide that even if a person is prohibited from voting owing to her being in police custody or in jail, as long as her name is entered on the electoral roll, she shall not cease to be an elector. This will mean that she will not lose the right to contest an election, despite Jan Chaukidar. The President’s assent to the bill and its notification as an act – strangely without any opposition from civil society – perhaps underscored what a seemingly activist order from the apex court could result in, if it is not backed by sound reasoning, and consideration of all relevant aspects by the court, notwithstanding certain legal infirmities in the hearing of the case.8

 

The third judgment, PUCL v. Union of India, granted the plea of the petitioners to extend the principle of secrecy of ballot to those voters who decide not to vote. This ruling, however, has led to diverse interpretations about its activist content. The voters who decide not to vote could do so in secrecy before the introduction of the electronic voting machines (EVMs) in 1998. A voter had only to drop the ballot in the ballot box without making any mark on it. As the EVMs did not have a neutral button, the court saw merit in the demand that provision of such a facility on the EVM could ensure the freedom of voters.

 

The activist aspects of this judgment are fairly clear. One, the Union of India argued before the court that the principle of secrecy of ballot can be extended only to those voters who have cast their vote and the same in no manner can be extended to those who have not voted at all. The court rejected this contention, and held that the right to vote and the right not to vote have been statutorily recognized, and that secrecy has to be maintained in both cases. Therefore, it declared the relevant rules under the Conduct of Election Rules [41(2) and (3) and 49(o)] which treated a neutral voter differently, and allowed violation of secrecy of his vote as arbitrary, unreasonable and inconsistent with freedom of expression guaranteed under Article 19(1)(a) of the Constitution.

The decision is heavily grounded in substantive reasoning rather than procedural grounds since it emphasizes the freedom of expression. But its substantive reasoning does not attempt to explain why the NOTA voters – who deserve secrecy – must also be counted. The NOTA vote does not have any value while determining the result of an election; so why count it at all, even if one concedes that the NOTA voter deserves to vote in secrecy? This may appear to be a flaw, but it adds to its activist content significantly as it leads the bench to indulge in rhetoric and obiter.9 

Thus, the court observes that the provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate think about them (paragraph 56). Again, in paragraph 51, the court is optimistic that the NOTA option will compel political parties to nominate a sound candidate. The court could not have observed so if it did not make counting of NOTA votes mandatory or merely ensured that secrecy was extended to the NOTA voters. It is doubtful if even the petitioners sought the NOTA voters’ right to be counted, apart from ensuring secrecy. Clearly, this tendency to exceed its brief makes the NOTA court activist.

 

But for some, these aspects are not sufficient to make it an activist decision. Many prefer to see the court’s decision to leave it to the Election Commission to introduce the NOTA option as proof of its desire not to mandate a judicially supervised enforcement mechanism, which would have clearly made it appear as activist.10 Although the political class may be aggrieved with this decision, there has been no demand to overturn it by amending the law. Indeed, though there has been some academic criticism against the judgment, the government and the political class in general has shown its readiness to comply. These aspects of the decision may render it less activist.

The Election Commission too, going by its submissions before the court, has no difficulty in introducing the NOTA option in EVMs from the ensuing assembly elections. The EC will face a predicament, though. In successive elections the EC has been trying to educate the voters of the value of participating in elections and choosing their representatives. For the first time, in accordance with the court’s directives, it has now to publicize the NOTA option to voters, which may be inconsistent with its responsibility to superintend, direct and control elections.

 

Ensuring a higher voter turnout at an election is considered an achievement of sorts for the EC, the assumption being that higher voter turnout, in turn, may lead to decisive results, providing a clear mandate to a political party or a combination to rule the country or the state for the next five years. If the EC itself gives an option to voters to cast a negative vote, should they be dissatisfied with all the candidates in the fray, it may well be construed as an invitation to uncertain mandates, resulting in political instability – a consequence which the Supreme Court might not have anticipated.

The NOTA option has also proved to be useful – as revealed by the reports in the media – to the fringe elements who have questioned the ability of India’s electoral system and democracy to achieve the larger goals of equality and justice. Reports suggest that militants in Jammu and Kashmir and left wing extremists in central India are favourably inclined to force voters to use the NOTA option to register their protest against not just parties and candidates, but the democratic experiment itself.

Clearly, the Supreme Court was driven by the optimism that the NOTA option will enable hitherto marginalized and excluded groups to participate in democracy by giving an opportunity to register their dissatisfaction with the current politics. This has indeed turned out to be true with reports suggesting that the Bhopal gas survivors, dissatisfied with mainstream political parties in ameliorating their condition when in power either at the Centre or in the state, have decided to use the NOTA option in the recent elections to the Madhya Pradesh assembly. It is not clear how by excluding themselves from the political process further by using the NOTA option, they hope to influence the very process if their NOTA votes are not going to influence the result of the elections. Mainstream parties may choose to ignore the NOTA voters altogether, and neglect their concerns before and after the elections, if they know that they are not likely to vote for their rivals any way.

 

However, incipient signals from the field indicate that indeed the contrary may also result: middle classes and groups opposed to democracy in general may consider the NOTA option as a useful means to send a message to the political class, and this will further encourage the growing cynicism against politics and democracy to alarming levels, thereby threatening the very success of our democratic experiment. There is reason to doubt that the Supreme Court did not adequately consider these possible consequences of its decision in PUCL.

The Supreme Court’s judgment in T.S.R. Subramanian v. Union of India, delivered on 31 October by a bench comprising Justices K.S. Radhakrishnan and Pinaki Chandra Ghose is the most recent example of the court’s intervention to fill legislative void and executive inaction, and its use of continuous mandamus to bring about institutional reform. Exasperated by the executive tardiness in implementing various recommendations made by several commissions set up by the government to reform the functioning of bureaucracy, many retired members of the civil service approached the Supreme Court under Article 32 to issue a direction to the state and central governments to constitute civil service boards (CSBs), ensure minimum tenure of service for civil servants, and make written instructions of directions by official superiors mandatory.

 

The Supreme Court broadly accepted their prayer, but moulded the relief granted by directing the central and state governments to constitute CSBs to comprise high ranking service officers, who are specialists in their fields, within three months till Parliament legislates. The CSBs comprising the Cabinet Secretary at the Centre and the Chief Secretary in the states will guide and advice the Union and the state governments on all service matters, and the political executive can overrule their advice only after recording reasons, it held. The court also directed the state governments and Union Territories to issue necessary notifications, if they have not already done so, to ensure minimum tenure for civil servants, and enforce necessary rules to make written instructions by official superiors in the civil service mandatory.11 

It is interesting to note that except T.S.R. Subramanian none of the other three rulings from the Supreme Court involved law-making; they only interpreted the existing provisions of the Constitution and laws to declare some legal provisions, practices and rules unconstitutional, thereby contributing to changes, generally perceived to be good for society and in the public interest. In T.S.R. Subramanian, the court found a consensus already prevailing among the central and state governments and the reasoning advanced in the various commission reports on civil service reforms conducive enough to make a significant, but restrained intervention.

The role of ad hoc judicial legislation in spurring the legislature to act where it chooses to remain silent is an essential part of the democratic process. Therefore, if the judges play an active role in law-making because they are bound by their oath as judges to play such a role, to defend the Constitution and its fundamental values, and find that the matter before them came within the judicially manageable corpus of rights, then there is a constitutional justification for judicial activism.

 

Creative interpretation, correcting legislative and executive inaction, and even rewriting of the Constitution in some cases have been the salient features of judicial activism in India. But as our analysis of the four recent cases shows, the Supreme Court uses these techniques of judicial activism with a greater degree of success in giving effect to CPRs than what has been possible in the case of ESRs. In all these cases, the Supreme Court’s decisions enjoy a great deal of credibility because of the public (read middle class) cynicism against the political class, and not merely on the basis of the strength of their reasoning, which falls short in some respects. Although all these cases are public interest litigations, the petitioners do not represent the poor and the marginalized, the original constituency of the PIL movement in India.

Three examples would suffice to show how the Supreme Court recently dealt with cases involving ESRs. In Manohar Lal Sharma v. Union of India and another (W.P.(c) 417 of 2012), decided on 1 May 2013 in an order by a bench of three judges comprising Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph, the challenge was to the policy of foreign direct investment (FDI) in retail trading. The Swadeshi Jagaran Foundation was an intervener in the case. Both Sharma and the foundation submitted to the court that the FDI policy was not founded on any material obtained from the government agency and no extensive consultation was made before formulation of the policy.

The Supreme Court declined to intervene, holding that it does not interfere on matters affecting policy unless it is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power. The policy that allows FDI upto 51 per cent in multi-brand retail trading does not appear to suffer from any of these vices, it reasoned. Although the petitioner did not refer to any particular ESR, it could be easily inferred.

 

In the second case, Arun Kumar Agrawal v. Union of India and others, decided on 9 May 2013 by a bench comprising Justices K.S. Radhakrishnan and Dipak Misra, the petitioner challenged the approval granted by the central government for the acquisition of a majority stake in Cairn India Limited (CIL) for US $8.48 billion and also for a direction to the Oil and Natural Gas Corporation of India (ONGC) to exercise its right of pre-emption (prior claim) over sale of shares of CIL. He contended that petrol and natural gas are held by the state in public interest and cannot be given away without due exercise of power and discretion guided by clear and cogent policy, because natural resource should not be subject to private ownership and private commercial exploitation. The court, however, dismissed his petition, holding that matters relating to economic issues always have an element of trial and error; so long as trial and error are bona fide and with best intentions, such decisions cannot be questioned as arbitrary, capricious or illegal.

 

In the third case, Geomin Minerals and Marketing (P) Ltd. v. State of Orissa and others decided on 10 May 2013, a bench comprising Justices R.M. Lodha and Sudhansu Jyoti Mukhopadhaya, quashed a challenge to the legality of the Odisha government’s recommendation to the central government to grant to Posco India Private Limited, a prospecting licence (PL) over a contiguous area of 2500 hectares for Khandadhar block in Sundargarh district in Odisha.

The Orissa High Court had in 2010 set aside this recommendation because in its view, the reasons cited by the state government for preferring POSCO over other earlier applicants, did not constitute ‘special reasons’, under Section 11(5) of the Mines and Minerals (Development and Regulation) Act, 1957. The Supreme Court, however, found that the High Court usurped the jurisdiction of the central government in scrutinizing the merits, and therefore, it was premature.

Like in the other two cases, in the case of POSCO too, the Supreme Court maintained a conscious distance from the realm of decision-making with regard to the choice of a particular applicant for a mining licence, even if the facts suggest absence of strict adherence to the statutory provisions.

The purpose of citing these three examples is not to belittle the judiciary’s past and the recent contribution to the realization of ESRs (which deserve a separate article), but only to underline the current challenges before the judiciary in the context of globalization and the gradual diminishing of the state’s welfarist role, in developing a jurisprudence of ESR to fulfil the Constitution’s goal of bringing about a real transformation in people’s lives.12

 

Footnotes:

1. P. Sathasivam, speech delivered at a book release function in New Delhi on 21 October 2013.

2. Madhav Khosla, ‘Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Discourse’, Hastings International and Comparative Law Review, Winter 2009, pp. 32-55. Khosla relies on a category of parameters developed by Margit Cohn and Mordechai Kremnitzer to measure judicial activism in 2005 and finds that judges can be activist in one respect and restrained in another. According to Khosla, three of the most talked about judgments in Indian Supreme Court’s history, namely, Maneka Gandhi v. Union of India (1978), Narmada Bachao Andolan v. Union of India (2000) and I.R. Coelho v. State of Tamil Nadu (2007) were not as activist as they appeared to be, if one measures them with those parameters. This article does not propose to undertake a similar rigorous exercise to quantify the degree of judicial activism, but only aims to look for parameters suggested in that scale to determine at random the activist quotient in a given decision.

3. Arghya Sengupta, ‘Activist Verdicts’, Frontline, 1 November 2003.

4. The Chief Election Commissioner etc. v. Jan Chaukidar (Peoples’ Watch) and Ors., order delivered by Supreme Court on 10 July 2013.

5. People’s Union for Civil Liberties v. Union of India, delivered on 27 September 2013.

6. ‘Reading Lily Thomas and Jan Chaukidar together: Logically a strange and dangerous result’, Guest Post by Vasujith Ram. http://lawandotherthings.blogspot.in/2013/08/reading-lily-thomas-and-jan-chankidar.html, last accessed on 12 November 2013.

7. ‘The Impracticality of Jan Chaukidar’, Guest Post by Shamboo Nandy, Law and Other Things, 8 August 2013, http://lawandotherthings.blogspot.in/2013/08/the-impracticality-of-jan-chaukidar.html, last accessed on 12 November 2013.

8. On 19 November 2013, The Supreme Court disposed of the UoI’s review petition in the matter as not necessary in view of the amendement.

9. Madhav Khosla, ‘Hot Button: The Ambiguities of the Supreme Court’s NOTA Judgment’, The Caravan, 1 November 2013. http://www.caravanmagazine.in/perspectives/hot-button, last accessed on 12 November 2013.

10. Arghya Sengupta, op cit.

11. Menaka Guruswamy, ‘Misreading the Court’, The Indian Express, 13 November 2013.

12. In the recent case, State of Jharkhand v. Harihar Yadav (decided by Supreme Court on 22 November 2013), Justices Dipak Misra and Anil R. Dave relied on our resolve to secure social justice as mentioned in the Preamble to the Constitution, to ask the Bihar and Jharkhand governments to pay arrears of salaries from 1995 to 2004 to employees of a statutory corporation which was subsequently liquidated. The court’s record in ESR cases has seen mixed results.

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