Abstract
During the period of 1946-49 when the Constituent Assembly of India sat and held regular sessions to discuss how to shape the document that would be the Supreme Law of this country, one thing they were particularly clear from the very first day that the Constitution of Independent India would follow the Doctrine of Separation of Power i.e., the Legislature, the Executive and the Judiciary would be independent of one another. But Assembly members at that time made the Executive responsible to the Legislature based on the Westminster Model based on the British Parliamentary System. But they kept the independence of the Judiciary almost intact from the Executive as well as the Judiciary1.
Almost every government that came to power in Delhi to some extent tried to influence or even directly control the members of the Judiciary. To a certain degree, some were successful but most of the them failed as the Doctrine of Basic Structure of the Constitution protected the Indian Courts every time.
Over the time the Indian courts, especially the Supreme Court, started devising new and innovative ways to administer justice for public good and welfare. But at times, the Court in order to serve justice, went well beyond the established Constitutional norms and protocols and encroached upon the territories of the other two organs of the government. In the recent, years the Supreme Court of India has often been seen using its extraordinary powers enshrined by the Article 142 of the Constitution of India, often chartering into the Legislative and Executive domain. Is the Court right in doing so? Should the Apex Court be more responsible while invoking its powers under the Article 142? Does the Court have near unlimited power under this provision? What are its limitations? This research paper attempts to answer these questions along with few others to determine the scope and limitations of the powers conferred upon the Supreme Court by the Article 142 of the Constitution of India.
Keywords
Judiciary, Judicial Activism, Judicial Overreach, Judicial Restraint, Constitution, Supreme Court, India
Introduction
In this era of rapid growth and advancement, for every country to progress it is essential to have at least the three basic organs of a government namely, the Legislature, the Executive and the Judiciary, where each of them are having their own set of duties and functions to perform separate and distinct from one another.
The function of the Legislature to formulate laws and policies for the welfare and development of its citizens. The Executive’s job is to implement the said laws and policies and keeping a check that the general public is able get access to the welfare schemes formulated by the government for their betterment. The role of the Judiciary, on other hand, is to resolve and adjudicate all the disputes that may arise in the future regarding the formulated and enacted law, and serve justice to the aggrieved party and punishing the guilty. According to Constitutional moralities, each of these entities and have separate and distinct roles and functions from one another. They also should not venture and encroach upon in the domain of the other organs in the government.
At times, due to Legislative excess and Executive’s high handedness, the Judiciary took it upon themselves and stepped in order to protect the fundamental and natural rights of the common citizens. This proactive stance of the Courts of Law to protect the natural and fundamental rights of the citizens in times of crisis is called Judicial Activism2.
The first instance of such being done was in Marbury v. Madison3 case in 1803 where the Supreme Court of the United States of America invalidated a law that was found to be contravention according to the basic principles of the Constitution of U.S.A. This procedure that was established in this case is popularly known as the Judicial Review where the courts of law are empowered to strike down the laws formulated by the Legislature or any orders passed by the Executive that is directly against the fundamentals of the Constitution4. The Indian Judiciary, especially the Higher Judiciary, has adopted a similar approach.
The Indian Constitution sets up a Federal Structure but with a Unitarian Spirit. India has a Single Integrated Judicial System, where in the order of power, the Supreme Court of India is at the top, then comes the State High Courts and finally comes the District Judiciary5. According to Article 141, all the decisions and orders of the Supreme Court is binding upon all the subordinate courts of law6.
Since the dawn of Indian democracy, we have seen that the Supreme Court and the State High Courts often becoming judicially very active when the things are going south in the country. During the times of peril, the Indian Courts took it upon themselves to take up matters of public interest to protect the natural and fundamental rights of the citizens and secure justice for them.
The recent example of such being done was in 2020, during the first wave of the Covid-19 Pandemic, a Division Bench of the Supreme Court of India where the Honourable Court took Suo Motu cognizant7 of the deteriorating situation and carefully monitored the work of the Executive officers so that all the sections of the society were able to benefit from the emergency measures adopted and implemented by the Union Government and their respective State Governments.
There is a provision in the Constitution of India that theoretically gives unlimited power to the Supreme Court. That provision is none other than the Article 142 that provides the unique power to the top court, to do “complete justice” between the parties where, at times, the law or the statute may not provide the remedy.
Very recently we got to witness the Supreme Court invoking its extraordinary power in Mansi Khatri v. Gaurav Khatri8 granted the decree of divorce after on grounds of “irretrievable breakdown of marriage.”
This research paper thus aims to find out to what extent can the Supreme Court of India can venture outside its jurisdiction under Article 142 in order to do complete justice to all the parties in a case and what important precautions should the Judges of the top court should take at the time of delivering justice so as to preserve the ethical and Constitutional values as enshrined upon the Constitution of India.
Research Methods
Articles, Blogs, Law Books, Journals, Editorials, Reviews
Research Methodology
This research paper is descriptive in nature and various secondary sources like books, law journals, newspaper articles and editorials have been consulted to for a deep critical analysis on the subject matter.
Judicial Restraint: A Conceptual Overview
Judicial Restraint is a legal principle where the Judges are encouraged to exercise more self-restraint, limiting their own power and refraining from taking up issues that are inherently in the domains of the Executive and the Legislature. In short, the Courts should interpret the law and not take part in the procedure of policy making9.
In a democratic society, the Judiciary has a very important place in the hearts of the people. The citizens have placed the Judiciary in such a high pedestal as it is an independent organ free from external influences, impartial and doesn’t favour any party beforehand, and delivers justice to the weak and aggrieved when both the Legislature and the Executive had turned a blind eye.
Since, the people hold the Judiciary in such a high esteem, the Judges of the Courts of Law ought to be more careful while carrying out duties. Just for sake of securing the public interests, they should not be leaving the judicial domain and venturing into the territories of the other two branches of the government.
While invoking its power of Judicial Review, the Courts of Law ought to exercise a certain degree of caution in order to protect the Constitutional norms and values of the democratic country such as:
- Respect for the Legislative Authority:
Exercising Judicial Restraint by the Courts that the Legislature, consisting of the elected representatives of the citizens of the State, is the primary law making and governing body of the country. This respect for a duly elected legislature and adhering to its authority is essential for maintaining the balance of power between the organs by preventing the judicial arm from not encroaching upon the legislative arm and law-making function of the government.
- Checks and Balances:
The principle of separation of powers in itself creates a system of checks and balances among all the entities of the government. Judicial Restraint is one such mechanism in this system that enables this system function effectively without any hindrance. Thus, the Judges should exercise self-restraint and should not be overstepping their authority and interfering with the working and functions of the Legislature or the Executive. This system allows each branch to act as an effective check on the others, preventing the concentration of power in any one arm and promoting accountability to the common public.
- Constitutional Interpretation:
According to conventional norms, the primary role of the Judiciary is to interpret the laws of the land and adjudicate the dispute that may arise regarding them. In such instanced, exercising a certain degree of restrain by the Judicial arm becomes essential in order to ensure that judges do not rewrite or reinterpret the said provision of the said law as a whole according to their own personal preferences or biases. By adhering to the original intent of the law formulated, Judges respect the role and authority of the Legislature in the process of law-making and enacting the constitutional provisions. At the same time, it also upholds the balance of power as enshrined in the Basic Structure of Constitution itself.
Article 142: Analyzing its Scope and Usage
The Judicial wing of almost every modern democratic country has a very similar set up:
- The Trial Court: Here, the case is first heard
- The Court of First Appeal: Here, the verdict/decision of the Trial Court is challenged heard again
- The Court of Second/Final Appeal (or the Top Court): Here, the verdict/decision of the Court of First Appeal is challenged. The decision of the Top Court often the Final one and is binding upon on all other Courts of Law subordinate to it.
Whether a country following is following the Single Integrated Judicial System (example: United Kingdom, India) or Dual Judicial System (example: U.S.A.), this pattern applies to all of them.
But what separates the top court of India i.e., the Supreme Court, from the apex courts of other countries is the application of Article 142 itself.
Article 142(1) of the Constitution of India, 1950 states, “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe” 10
To simply the said provision, Article 142 provides discretionary power to the Apex Court as it states that the Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice to any aggrieved party before it. 11 This law gives the Supreme Court virtually unlimited power to pass any order or decree to meet the ends of justice. No other Court of Law in any country of the world has such vast realm of power. It is present only to the Supreme Court of India.
During the period of 1946-49 when the Constituent Assembly used to sit and hold regular session, the Founding Fathers recognized the need and gave the Top Court of the country some discretionary power in order to ensure delivery of effective justice especially in such situations where the existing laws of the country did not provide effective or adequate remedy12.
In the initial years, the scope and application of this provision of law was very limited. The Court used to invoke the article primarily to issue orders to enforce its own judgments or to rectify any defects or omissions in its own earlier sanctioned orders.
However, the scope and usage of this article by the court has expanded over time. The Court had in earlier occasions invoked Article 142 in order to fill up certain legislative gaps, to provide effective remedies and to deliver justice in certain situations where existing law was not adequate enough. For example, the court had invoked this provision in the past to provide compensation for victims of crimes and natural disasters, to direct and monitor investigations, to issue guidelines for safety and security, and in even, certain extraordinary circumstances, to take over the administration of public institutions.
Very recently, the Supreme Court invoking its inherent powers from the Article 142 had ordered the authorities of the Indian Institute of Technology (IIT) – Bombay to accommodate a Dalit student who had lost his admission due to failure in paying of admission fees on time13.
But many legal scholars across the country are of the opinion that the frequent invocation of the Court’s discretionary powers to do ‘complete justice’ often breaches into the territories of the Legislature and the Executive, thus violating the Doctrine of Separation of Powers.
In December 2016, the Ministry of Road, Transport and Highway of the Central Government had passed an order banning liquor stores and sale of alcohol along the National Highways. On March 2017, the Apex Court put in place a ban on a distance of 500 m invoking its discretionary powers under Article 142. And in absence of a similar notification, the ban was also extended to the State Highways as well14.
Although it was a well-intentioned order by the Top Court, but it a complete breach of the Basic Structure of the Constitution, as it violated the Doctrine of Separation of Powers as the Court had ventured into the jurisdiction of the Legislature and the Executive. This is a clear case of Judicial Overreach i.e., where the Judiciary goes far beyond it scope of power and starts interfering with the work of the Legislature and the Executive.
Analysis of Judicial Restraint in Practice
In order to keep the faith of the people intact in the Courts of Law, it is not only important to have an independent and impartial Judiciary, but also having a Judiciary limits itself at times from going overboard in the name of delivering justice. A great deal of caution should be exercised by the Judges of the Supreme Court of India, so that in order to do ‘complete justice’ they should not be inflicting any harm on the established Constitutional norms and values along with the Basic Structure that forms the core of our Constitution.
The Supreme Court of India has recognized this issue, and in numerous occasions has refrained from exercising it power of Judicial Review and invoking its discretionary powers under Article 142.
S.R. Bommai v. Union of India (1994) 15, is famous case often cited by the legal scholars to show the restraint practiced by the Indian Judiciary. In this case, the top court held that in certain cases Judicial Review is not possible as matter is of political in nature. The Court has stated here that if norms of Judiciary is applied in the matter of politics, then it would be entering political domain and the Court shall avoid it.
Similarly, in Almitra H. Patel Vs. Union of India (1998)16 the Supreme court refused to direct the Municipal Corporation on the issue of assigning responsibility for cleanliness of Delhi and stated that it can only assign authorities to carry out duty that is assigned as per law.
Recently, it has become a trend by many activist groups to file PILs (Public Interest Litigations) regarding various social issues related to human rights violation, environmental issues, health concerns, public administration, etc. but the Top Court refuses to listen to them in the first instance. While disposing off such PILs the Supreme Courted has reiterated time and again that all though the intentions of such PILs are well-natured and aims to seek social justice, entertaining such matters would be a gross violation of the Doctrine of Basic Structure as it would amount to entering into the Legislature and the Executive domain. The Court has asked these groups first to reach out to the concerned authorities and government agencies with their problems to get a solution. If no solution is reached or no help is provided then they can definitely move the Top Court again to get their issues resolved. But that should be the last resort when every other possible means has failed.
Balancing Judicial Restraint and Judicial Activism
When we discuss about the concepts of Judicial Activism and Judicial Restraint, majority are of the opinion that they are polar opposite terms and cannot exist together. It is a very wrong assumption by the people. They are not in any way against each other. In fact, Judicial Activism and Judicial Restraint go hand in hand.
Every time in India, when the Legislature and the Executive did not adhere to the constitutional norms and failed perform their role as entrusted by the law, all these times the Judiciary stepped in to protect the rights of the minorities, administer justice and punished the corrupt public officials who were involved in mal-practices and failed to perform their duty. This was integral part of Modern Indian history as it signifies the important role played by the Supreme Court in protecting the natural rights of the citizens of India.
Although it is truly commendable on the part of our independent Indian Judiciary, it should not become the norm. It is the duty and function of the Legislature and the Executive consisting of the elected Ministers of the Parliament and various State Legislatures along with various Civil Servants whose salaries are paid from the tax collected from the hard-working citizens of our country. They are responsible to cater to the needs and work for the welfare of the common citizens.
There must a balance between Judicial Activism and Judicial Restraint. It becomes essential in times of normalcy in order to proper and synchronous functioning of the Legislature, Executive and the Judiciary. It not only helps in upholding the law of the land but also marks a respect for the democratic form of government by leaving the work of policy making to the lawmakers.
Conclusion
Since the Constitution of India came into effect from 26th January 1950, the Indian Judiciary has played an active role in securing socio-economic and political justice for the marginalized as well as the deprived sections of vast Indian society, especially through the creative and innovative means of PILs (Public Interest Litigations.) This has restored the rights of disadvantaged sections of the Indian population. Even when the Executive was trying its level best, even going as far as altering the provisions of the Constitution, to exert its influence over the Judiciary, the brave Judges of the Supreme Court struck such draconic laws by the power of Judicial Review as all them directly in contravention of the Basic Structure of the Constitution. This has kept the faith of the common citizens of our country on the Courts of Law in India intact till today.
However, in a democracy, it is important to maintain the principle of separation of powers and uphold the legitimacy of all the three organs of the government. Even if one of them is missing, the government cannot be called a democratic one.
It can be possible only when the executive and legislature are attentive and functional towards socio-economic and political demands of the society. At the same time, it is essential for the Judiciary to be cautious of stepping into the spheres of Legislative and Executive activities to which it definitely does not belong to. Only then we say that we are living in modern democratic country befitting of the 21st Century!
AUTHOR:
Sayantan Debnath
St. Xavier’s University, Kolkata
References
1 V.N. Shukla, Constitution of India (14th Edition)
2 www.dhristiias.com/article/judicial-activism-judicial-restraint
3 Marbury v. Madison 5 U.S. 137
4 www.dhristiias.com/article/judicial-activism-judicial-restraint
5 K.K. Ghai, ISC Political Science Class 12
6 Article 141, The Constitution of India, 1950
7 Suo Motu Writ Petition (Civil) No.3 of 2021
8 Mansi Khatri v. Gaurav Khatri AIR Online 2023 SC 453
9 www.dhristiias.com/article/judicial-activism-judicial-restraint
10 Article 142 (1), The Constitution of India, 1950
11 www.indianexpress.com/editorial/
12 V.N. Shukla, Constitution of India (14th Edition)
13 Prince Jaibir Singh v. Union of India and Anr. 2021
14 State of Tamil Nadu and Ors. v. K. Balu and Anr. 2017 2 SCC (281)
15 S.R. Bommai v. Union of India 1994 SCC (3)
16 Original Application No. 888/1996 NGT Delhi (Principal Bench)