Up in Arms

Written by  //  November 16, 2010  //  Law & The Judiciary  //  12 Comments

The Indian armed forces are bravely defending the borders of the country, often standing on guard at a height of 20,000 feet and in minus 30oC temperature, day and night so that the people of India can live, work and sleep in peace”.

At first blush, that seems like a dialogue from yet another Indian remake of a classic Hollywood movie, this time, the Jack Nicholson starrer- ‘A Few Good Men’. However, for better or for worse, the quote is from a recent decision of the Supreme Court of India in Pushpa Vanti v. Union of India. And the decision, while motivated by noble motives, joins a slew of other decisions where the Indian judiciary seems to have stepped far beyond the scope of its traditional judicial function.

The claim before the Court (the opinion has no mention of what the precise nature of the claim was) was concerned with the pittance that widows and family members of army officers were receiving as pensions. This is undoubtedly a valid concern. However, what I take issue with is (1) the Court seeing it fit to address this concern; and (2) the way it went about addressing the concern.

Both these form essential prongs of the argument against aggressive forms of judicial activism. The first of these prongs rests on the principle that under the model of separation of powers, no matter how loosely adopted, there are some things which the judiciary is not competent to adjudicate. This institutional incompetence arises from either concerns over the concentration of power in one wing of the Government, or from the very nature of the judicial function. However, given the legislative lethargy that hinders progressive changes in the law, the first prong of the argument against judicial activism may be taken to have lost some of its strength. However, the same cannot be said about the second.

Before proceeding any further, let me list what the Supreme Court has seen it fit to do in Pushpa Vanti

(1)   They have directed the Central Government to set up within two months a Commission which shall be called the Armed Forces Grievances Redressal Commission

(2)   They have laid down the functions of this Commission

(3)   They have laid down the composition (including specific individuals) of the Commission, as also the pay scales

(4)   They have established its term, the location of its headquarters, and also that the building “must have sufficient rooms to provide an office for each member of the Commission”. (¶15)

(5)   Having directed the establishment of this Commission, they have referred the claim of Ms. Pushpa Vanti to this Commission.

Even if it is argued that the judiciary ought to take cognizance of such claims, with all due respect, I cannot get myself to see this as an acceptable way of addressing those concerns. This is as far as it can get from the true nature of the judicial function. That is not to deny that the judiciary in the past has passed orders can be considered to have been factually beneficial- Vishakha being a case in point. It also cannot be denied that such orders make for very good headlines. However, neither of these answer the fundamental question of whether these orders are in keeping with the proper exercise of the Court’s judicial function.

Access to justice, the content of justice and the mode of delivery of justice, are inter-connected, but essentially different things. Yes, it is justified to allow reduced formality in approaching courts for the protection of one’s fundamental rights. Indeed, that is what has been done with the concepts of PIL and epistolary jurisdiction. A massive step has already been taken in relation to the content of justice by the incessant expansion of Article 21 of the Indian Constitution, in the face of arguments by the like of Mr. Seervai. However, the ways in which the delivery of justice is being taken over by the judiciary, seriously threatens the very notion of a judicial function. In other words, if Courts have unbridled freedom over access, content and delivery, there is practically nothing that falls outside the scope of the judicial function.

Admittedly, there are cases where some remedy is better than no remedy. But that temporary relief should not be allowed to colour the grave institutional damage that such over-reach results in. And this is not to mention the diversion in focus from addressing real concerns in other areas of governance, by championing the never-ending expansion of the judicial function.

12 Comments on "Up in Arms"

  1. Alok November 16, 2010 at 1:51 pm ·

    A minister has resigned in a 1 lakh crore scam, CMs and many army officials stand accused of using the excuse of Kargil martyrs and widows to corner exclusive, CRZ-violation flats in Mumbai, and the half the Organizing Committee of the CWG is likely to be in jail in the next few weeks. Throw in the large-scale buying and selling of legislators in Karnataka that no one denies anymore or the barely concealed attempt to pay less than minimum wages to workers under the NREGA, and you need little more evidence of a legislature or executive that has fallen beneath the contempt of most people of this country.

    In this regrettable but utterly factual situation, accusing the Supreme Court of alleged overreach is a bit like accusing rescue workers of defacing of a building that has just collapsed.

  2. Shantanu November 16, 2010 at 2:06 pm ·

    Alok,

    I couldn’t agree with you more on the abject state of the executive and the legislature, however, that does not lead to the necessary conclusion that the gap-filling is to be done by the judiciary.

    As to your analogy, while persuasive, I think it is incorrect. What I seek to do is more along the lines of pointing out that shoddy and temporary patchwork by self-proclaimed rescue workers on a collapsing building (I am hesitant to accept that the building has collapsed) is dangerous and likely to divert attention away from what is really needed to get the building back into good repair.

  3. Arghya November 16, 2010 at 9:48 pm ·

    Hi Shantanu,

    I agree with you entirely. In fact, keeping with the theme of analogies, I’d say this is akin to an officer in the central government handing out a contract regarding the supply of services without a tender, to a friend, on a matter which fell within the jurisdiction of a state government.
    The court as you rightly say has no business setting up commissions. It is an executive function and if the executive is not doing it, the court must make it do so, and not do it itself. At least the Vishaka judgment had the sincerity to state that it is a legislative function and its decision will operate only in the interim. Nothing of the sort if present in this decision, which is akin to a brazen arrogation of power.
    Second, even assuming it has such a power, the manner in which it vests it in this case, frankly leaves me stunned. It has appointed Justice Kuldip Singh, Justice Sodhi, General Malik and Lt. General Oberoi. On what basis? Because they have knowledge of the army? Because they are based in Chandigarh? Or is it becuse all their surnames have the letter ‘i’ in them? It could be anything really- but the point is that the longer the court continues to arrogate powers and impose its will on the executive (this time on the UT of Chandigarh which has to provide a building) the more ammo it gives for a backlash which will inevitably happen. And that will truly be terrible.
    All this even more surprising coming from Justice Katju who in Aravali Mining had indicated a preference for deference!

  4. Subramanian Natarajan November 17, 2010 at 4:16 am ·

    Shantanu –

    Excellent spot and convincingly argued. I want to help you with the analogies.

    This is a bit like a cricket match where the 2 umpires after having observed that the bowling team is repeatedly engaging in all sorts of “hanky panky” (to use a favorite word of our Judges) like match fixing, ball stamping, ball spitting, sledging, bodyline bowling, etc. etc. that can and do cause significant damage to the 2 batsmen at the crease, decide to take matters into their own hands. Therefore instead of enforcing the rules, they take the ball and bowl one over each from each end.

    I think the point in relation to judicial activism is that the judges simply cannot functionally legislate or govern, much in the same way umpires simply cannot bowl or bat.

    Subra

  5. Alok November 19, 2010 at 5:17 pm ·

    Oh dear, we seem to have gotten carried away with our analogies haven’t we?!!

    Let me clarify.

    My views used to be along these lines, with the nuances Anirudh points out in this post. http://www.criticaltwenties.in/lawthejudiciary/where-should-the-court-draw-its-lakshman-rekha

    Unfortunately, I’ve had to re-think some of these views after having had the opportunity to work with the Government on some major litigation, PIL and otherwise, and having actually seen how the Court goes about its “interference” through PILs.

    The reason why I’ve had to do so I cannot give in all its gory detail (to use the Mahatma’s analogy this time, it would be like a drainage inspector’s report!) but suffice to say that corruption and nepotism are not the only tarnishing features of Indian governance.

    I would gladly welcome any effort to reform the Government and governance, and believe me, no one (not even the most activist judge) thinks that the Court should replace elected officials any time soon. Rather, the Court’s role is a “in the meantime, let’s do this” type solution” If nothing else, it keeps the Government honest to the best of its abilities.

    Katju J is notoriously inconsistent in his views on PIL veering from outright condemnation to whole hearted embrace, but I am making a bigger point.

    The Court’s contribution to “institutional damage”, which seems to be Shantanu’s main point here, is trivial. The credibility and the competence of India’s legislature and executive are under grave question and this has absolutely nothing to do with the Courts and is for the reasons I’ve already mentioned above (and more).

    To finish with one last (obviously imperfect) analogy; the many problems with Indian governance are like a disease that affects multiple organs with different symptoms which requires long term treatment and therapy (probably like cancer). Yet, medication (judicial interference) is also needed to treat the immediate symptoms to allow the patient to be able to deal with long term treatment, and yes, sometimes this medication has its side effects, but that doesn’t mean we should stop the medication and leave the patient suffering till the long term treatment is done.

  6. Niranjan November 19, 2010 at 11:04 pm ·

    Alok,

    There is no doubt that the executive and the legislature are in a state of paralysis, for more reasons than one. There is also no doubt that the intervention of the Court has often had beneficial effects. But that isn’t the question Pushpa Vanti and similar cases raise – it is whether there is any principle of LAW that allows the court to pass these orders. Shantanu’s reference to institutional damage, if I understand him correctly, is not to damage in a loose, factual sense, but to damage to a very important constitutional value – that organs of Government cannot exceed functions vested in them by the Constitution. If this is true, whether in FACT there is damage to legislative or executive autonomy is irrelevant. The trouble with all these analogies is that while attractive, they are misleading – while no one can sensibly argue that “medication” should be discarded because of its side effects, I don’t think it follows that we want engineers or architects performing heart surgery because the surgeon is either unable or unwilling to.

    It is easy to decry this view as abstract Ivory Tower legalism – but there is an enduring value to adjudication by principle and legal doctrine, in preference to a rough sense of “justice” administered by the equities of the case. The remarkably stability and adaptability of English common law are a direct result of the careful and incremental approach that sets English judges apart – Indian judges accepted this approach initially (the best example is Gannon Dunkerley), and its untimely death somewhere in the 1960s or early 70s is most unfortunate.

  7. Alok November 20, 2010 at 5:09 am ·

    Niranjan

    A written constitution does not necessarily mean that things like “any principle of LAW that allows the court to pass these orders” and “functions of organs of government” are written in absolutely cut and dried terms with no scope for anything but trivial flexibility. The core is probably clear, but the edges are very frayed and ambiguous and the boundaries continuously drawn and re-drawn. Paradoxically, and this is where your comparison of Indian law with English common law completely breaks down, a written constitution, which makes the judiciary the final interpreter of the Constitution much much more powerful than it superficially seems. For better or worse, we have given ourselves a written Constitution, placed the judiciary as the final interpreter (and guardian) of the Constitution, so we can’t keep referring to the House of Lords as some mythical model of perfection in adjudication.

    That said, I don’t deny that we can say the Court’s right or wrong when it seems to have taken over functions it doesn’t otherwise do. Separation of powers is only one of the arguments (and not even the most convincing or compelling in my opinion) against judicial “excess”. Anirudh’s already pointed a couple of others in his piece so I’m not going to elaborate further.

    Even then, I cannot see how the Court, marginally exceeding its allegedly clear and obvious jurisdiction, can cause “damage” to an institution that refuses to use its functions for the purposes it was granted, and is in fact, working against the very purpose for which these were granted with little heed to the Constitution or its principles.

  8. Shantanu November 20, 2010 at 9:04 am ·

    Hi Alok,

    I am sorry to go on about this issue, but I think it is one on which many disagree, and it would be a disservice to the view against judicial over-reach, not to point out the problems I see with what you are suggesting.

    First, you are right to point out that absence of a written Constitution in the UK may be taken to mean that the notion of parliamentary supremacy is preserved, unlike in India, where the courts have the power of judicial review specifically enshrined in the Constitution. However, after the Human Rights Act, there is little more than historical force in this argument, since English Courts can, when they wish to, exercise powers very similar to those of judicial review. The point which Niranjan is making, very correctly in my view, is that when exercising this function, the judiciary should be bound by certain principles, necessitating an incremental approach like the one adopted in England.

    Secondly, and very importantly, we have indeed “placed the judiciary as the final interpreter (and guardian) of the Constitution”, not of the governance and well-being of the nation. So principles such as the separation of powers, which are contained in our Constitution, have to be followed by the judiciary too. The right of guardianship does not include the right of subversion, in fact, it creates an added fiduciary duty.

    Finally, you seem persistent is misunderstanding the ‘institutional damage’ I speak of. I am not talking about damage to the institutions of the legislature and the executive. I am speaking of the damage to principles of the separation of powers which damages the relationship between the institutions, and the indefensible extension of the scope of the judicial function, which damages the institution of the judiciary itself.

  9. Dr. Ajit R. Jadhav November 22, 2010 at 9:27 am ·

    Shantanu,

    I have no special knowledge of law; I am an engineer + physicist. However, I can see that the points being raised here are indeed very important.

    I especially liked the clarity of thought with which you present your argument in the following passages (emphases within blockquotes are mine):

    1. In the main article:

    However, the ways in which the delivery of justice is being taken over by the judiciary, seriously threatens the very notion of a judicial function. In other words, if Courts have unbridled freedom over access, content and delivery, there is practically nothing that falls outside the scope of the judicial function.

    .

    In the replies:

    …the abject state of the executive and the legislature, however, that does not lead to the necessary conclusion that the gap-filling is to be done by the judiciary.

    ;

    …we have indeed “placed the judiciary as the final interpreter (and guardian) of the Constitution”, not of the governance and well-being of the nation….

    ;
    and

    I am not talking about damage to the institutions of the legislature and the executive. I am speaking of the damage to principles of the separation of powers which damages the relationship between the institutions, and the indefensible extension of the scope of the judicial function, which damages the institution of the judiciary itself.

    Apart from isolating the issues right, what I really appreciate here is that there is this logical completeness to your statements. … Nice to see that!

    All in all, a very good thread. Keep it up!

    –Ajit
    [E&OE]

  10. Dr. Ajit R. Jadhav November 22, 2010 at 9:30 am ·

    Just a side remark about formatting here. The stylesheet used here is such that for the block-quoted text, the font used is italics, and hence, for the emphasized text within the blockquotes, the font that gets used is direct (or normal), not italics. Please read my above comment accordingly; thanks.

    –Ajit
    [E&OE]

  11. Shantanu November 22, 2010 at 3:08 pm ·

    Dr. Jadhav,

    Many thanks for your kind comments. I am glad that our discussions are of interest to those not directly associated with the law too, since that is a criticism very often levied at members of the legal fraternity.

    Shantanu.

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