Column: Is the judiciary ruling India?

The Supreme Court, in its landmark judgment on the 2G case, cancelled 122 licenses. The public exulted over this ruling and cited it as an example of an ‘activist’ judiciary. The middle class, in its angst and alienation, seems to have reposed its unflinching support in the judiciary. While judicial intervention needs to be appreciated in times of crisis, the key issue is whether the judiciary is overreaching its jurisdiction and thereby violating the principle of ‘separation of powers’. One of the key issues in the spectrum case is whether the judiciary interfered with executive powers in the name of wider public interest?

The judiciary has often defended itself and cited the principle of judicial review, which was established as a well-entrenched principle in all democracies after the ruling in the Marbury v Madison case of the US Supreme Court. Justice AK Ganguly who was a member of the two-judge bench that cancelled these licences, said, ‘Under our Constitution, judicial review is one of its basic features, and, in exercise of such judicial review, the court can certainly scrutinise and even strike down policy decisions of the executive when such decisions are unconstitutional.’ The moot question is whether judicial review can be used in any arbitrary manner and is judicial review becoming judicial authoritarianism? One of the drawbacks of judicial review has been the issue of the judges’ subjectivity. In the name of ‘wider public interest’ can a judge misinterpret the text of the Constitution?

The Indian judiciary has done this on many occasions. A classic instance is the EP Royappa v State of TN case, where the Supreme Court liberally interpreted the meaning of Article 14 that deals with ‘equality before law or the equal protection of laws.’ The court used the principle of ‘substantive due process’ and equated the concept of ‘arbitrariness’ with ‘inequality’. This was criticised by leading constitutional experts like HM Seervai. The concept of ‘substantive due process’ was used by the US Supreme Court in its opposition to President Franklin D Roosevelt’s New Deal. The American Supreme Court had blocked some key legislation that the executive had introduced in the name of ‘public interest.’ In fact, this constitutional crisis between the executive and judiciary reached such alarming proportions that President Roosevelt threatened to ‘pack’ the Supreme Court with his own judges by increasing the number of judges from nine to 15. This issue was discussed in the Indian Constituent Assembly where our founding fathers, in their wisdom, opted for ‘procedure established by law’ in Article 21 (borrowing it from Article 30 of the Japanese Constitution of 1946) instead of ‘due process’. From Royappa, it was a triumphant march through Maneka Gandhi, RD Shetty, Ajay Hasia and a host of other cases where the Supreme Court freely struck down actions of the other coordinate branches of the government on the basis that it was not ‘reasonable’ or was ‘arbitrary.’ This was done applying a standard of judicial review, neither contemplated by the framers of the Constitution nor by the plain text of Article 14.

Judicial activism has even entered the sphere of International Law, where principles like the ‘polluter pays’ and ‘precautionary principle’ have been made part of domestic environmental law through judicial decisions like the Vellore Citizens Welfare Forum v Union of India ruling. The acceptance of international norms and laws is an exclusively executive function since it is closely associated with questions of national sovereignty. The Supreme Court’s judgment provides for automatic incorporation of all customary international legal principles, whatever their content or validity, into domestic law. This is clearly a case of judicial overreach.

Is there a way out of this? The answer may well lie in the realm of interpretation. The doctrine of ‘originalism’ sheds some light on this. What does the text of the Constitution mean? It means what the founding fathers wanted it to mean: We ought to seek out the ‘original intent’ of our framers to understand what the text of the Constitution means. The Indian case is very strong because our Constituent Assembly debated constitutional issues for two years and 11 months! We certainly have a huge resource pool to refer and infer the meaning of the words in our Constitution. Judges ought to follow this process of interpretation and should not ‘legislate’ from the bench. In case the text of the Constitution falls short of rendering justice or is inadequate, then it is for the legislature to rectify it. The judiciary should safeguard the Constitution; it should not write it. Only then will we have the rule of law prevailing, instead of the rule of men.

The writer is a faculty of the School of Law, Christ University