Article 142 of the Constitution of India is like the Sword of Gryffindor. There’s always a right time to use it.
Since the last two decades, Judiciary is trying to walk in the shoes of Legislature and it is high time that some restraints are put up to stop the random use of this Brahamastra by the law-interpreters. With an increase in expression of indirect command disguised as judicial opinion for providing justice beyond the statutory scope of the law, the organ’s overreach has become a matter of concern. The organ is deviating from its objectives and sometimes fails to understand that lawmaking is not the job of the judges but the legislature. A single stroke of the pen is placing Judiciary above all the other elected bodies, making it the supreme commander of the State in a negative way. Everyone is familiar with the quote “With great power comes great responsibility” and it is now a necessity for the judges of the apex court to understand its actual meaning.
Supreme Court exercises this power and invokes it by Article 142 of the Constitution of India. Article 142 provides a special and unique power to the Supreme Court to do “complete justice” where at times law and statues may not provide a remedy. The Court can extend its boundaries and limits to act as an activist in the situation to put a quietus by its own judgement skills. It is a trump card which is being used excessively and in matters where the interference of SC is not required. Judicial Activism is appreciated to provide justice in every sphere but Judicial Overreach is an erroneous philosophy to curb the authority of Parliamentary organs and other autonomous bodies.
In recent times, the Supreme Court of India relies more on the sociological school of law than on the positivist school of jurisprudence. On one hand, the positivist school defines the law to be different than other decision-making factors such as morality or religion. If a law is made by an elected body and does not contradict the basic structure of the country’s constitution in any way, it will be accepted and allowed. It does not matter that it stands absolutely right in the eyes of a particular religion or not, it is made for the sole purpose of modernization and/or betterment of the society. On the other hand, sociological school works on the philosophy that instead of working on the legal system established by the statutes, verdicts can be given by the laws that judges make. The court enjoys discretionary powers to make laws as per their own perspective on a lawsuit. Whatever the court feels ethically and morally right in its sense -ignoring the fact that it is contradicting the literal rule of case construction- is commanded to be followed as, apparently, an order from the apex court. The judges have the freedom to lay down anything as law following their own subjective notions. Adopting this way of jurisprudent functioning is not healthy for a democracy. Sociological philosophy cannot be justifiably obliged except in rare circumstances such as the decision to strike down Section 377 of IPC.
On a superficial level, the debate has two extremes where one side, the detractors of judicial overreach believe that it usurps the authority of the law-makers and the defenders believe that as we progress forward with time, there is a need for an updated interpretation of the law. A major problem is that none of the sides is favoring the subtle “activism” that can be implemented in exceptional situations and ignoring this simple concept as a whole.
Our constitution has provided us with a specific nature, spirit and political structure of India for the proper functioning of the nation. One of the fundamental divisions is the separation of powers between the legislature, the executive and the judiciary. The three organs work to make, enforce and interpret the law, respectively. When a certain organ starts interfering in the work of another organ in a regular manner, disputes are bound to take place. One cannot misuse the power he/she has been granted. Respecting Article 142 and maintaining its sanctity is the responsibility of the Supreme Court.
Even in the Supreme Court Bar Association v. Union of India, it was made clear that Judicial Activism should be used not to supplant the existing law but to supplement it. Unfortunately, we cannot see it happening nowadays.
Many cases have been found where the superiors implemented overreach without taking into account any consequences before carrying out the orders. We have a prominent example in which liquor was banned at any outlet that was within 500m of any national or state highway. Firstly, it was an unnecessary interference as the Directive Principles of State Policy should be left to the government to administer. The court was not the appropriate authority for such a decision. Secondly, it lacked empirical evidence supporting that there will be a huge reduction in accidents or death suffered on highways and thus it was not a fit case to use Article 142. Moreover, the accountability for accidents by over-speeding is ten times more than drink-and-drink on highways, still, no regulations were proposed for that. As a result, there was a significant direct and indirect loss of revenue and employment with no alternatives available for highway outlets.
Another faulty overreach example was the cancellation of telecom licenses in the 2G case. The Supreme Court further directly told the government to allocate national resources through auction only. The consequences were unpleasant. There was a rise in non-performing assets and the Judiciary neglected the role of the other two organs. Telenor, Etisalat and Sistema exited with Vodafone and Idea merging as a single functioning body. Some drastic changes took place just because of one miscalculated judgement taken independently. This is the kind of impact that judicial activism can make.
Contrarily, in the case study of Bhopal gas tragedy, judicial activism served as a helpful tool when it awarded the compensation of $470 million to the victims and served complete justice by overriding the laws made by the Parliament. Here, the court succeeded in invoking the power for the protection of law and justice in the best possible way.
These are the kind of examples where we want judicial activism to play its role; not in censoring a Bollywood movie made on the law. The court should provide remedies to the people suffering injustice by exercising this strength instead of making Lodha Committee for regulating the work of BCCI.
Some people do not stutter to describe Judicial Activism/Overreach as an act of ‘tyranny of unelected’ in a democratic nation and if there are no restrictions placed on judges to base their ruling on legal grounds rather than extralegal ones, it won’t take long enough for the phrase to become a general definition. Such overreach reduces the trust of the citizens in public institutions. Without a strong leash to curb the usage, it is not healthy to be exercised in a democracy. Moreover, it is a waste of judicial time which can be utilized for clearing the backlog cases pending in court.
What do we need to solve this conundrum? We need adequate judicial restraint. We need to institute proper checks and balances on the Judiciary. It does not need to cross the boundary as often as it is doing right now by making decisions based on morals or ethics rather than on legal grounds. The Supreme Court and the other bricks in the pyramid are instituted to ensure that law, security and justice prevail in the society. They are not instituted to pass orders regarding time limits to burst crackers. Article 142 cannot be used as a constitutional convention that needs to be used every other day without having any limits on the unbounded and augmenting judicial creativity.