Saturday, April 07, 2007

Chief Justice Verma's views on recent Supreme Court decisions and trends

Over the last two days, the Indian Express has carried excerpts from a public lecture recently delivered by Chief Justice J. S. Verma. The two parts of the lecture as carried in the IE are available here and here.

The lecture is unusual in that Justice Verma has been extremely forthright (for a judge, that is) in sharing his views on some recent controversial decisions. One should recall that Justice Verma authored some of the prominent decisions of the Court during the 1990s which attracted criticism for being 'activist' and beyond the powers of the judiciary. Interestingly, much of his lecture is directed at more recent decisions which he feels are subject to the same line of criticism.

After spending the first part of his lecture outlining his general views about the proper role of the judiciary, Justice Verma turns to cases that he considers may be problematic as per his analysis. Justice Verma differentiates between cases that he sees as justifiable (a category within which he includes the Supreme Court's intervention in forest matters, and the Visakha case), and those that have "legitimately" attracted criticism. I focus, in this post, on the latter category, and include extracts from his lecture which focus on this line of cases:

"Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.

Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.

Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi."

The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided."

Later on, Justice Verma offers specific reasons why he thinks the recent decisions of the court in the Jharkhand case and the 'cash for queries' case are problematic:

"Jharkhand order

The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.

It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.

‘Cash for query’ case

This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.

The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.

The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict."

As I said before, the contents of the lecture are intriguing not because they contain startlingly new insights - indeed, many of the points raised by Justice Verma have been advanced by several commentators (although perhaps not in the space of a single, overarching piece). What makes this noteworthy is that a former Chief Justice of India has felt obliged to make public comments about these cases, and in the context of an academic lecture. Such a trend is to be welcomed, because such discussions will inevitably raise the quality of judicial decisions in future, as courts become more sensitive to the way their decisions are perceived, and try to meet such concerns before they decide future cases.

I also think it is important that Justice Verma's views in turn be subjected to strong scrutiny, matching the spirit which presumably motivates his comments. I for one am unsure whether environmentalists and activists for women's rights would agree with Justice Verma that the Forest and Vishakha cases are unqualified successes for the respective movements. I am also not entirely certain that Justice Verma (who, it should be recalled, was the author of the S.C.A.O.R.A opinion that resulted in judicial appointments in India being under the control of the judiciary itself, and has been cited as the most egregious instance of judicial activism in recent years) has clearly laid out the boundaries between justifiable judicial actions and those that would amount to adventurism. The challenge for students of constitutional law is to evolve criteria which enable us to assess the differences between these two categories by some concrete (or objective) means. The difference cannot simply be whether we like particular results in particular cases, or think that some other course of action was more desirable in such cases.
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