Millions of migrants breathed a sigh of relief when the Supreme Court of India passed its interim directions on May 28, 2020 in a suo moto Public Interest Litigation to redress their miseries caused by the unplanned lockdown to beat the coronavirus. However, the extraordinary intervention sparked a debate whether the Supreme Court should have refrained itself from the majoritarian art of governance.
Needless to say that the Supreme Court is the seat of justice for arbitrating between individuals in respect of property matters, contractual rights or issues touching their personal matters; deciding on criminality of accused; adjudicating on federal disputes; and finally, in exercising extraordinary power of judicial review to enforce the fundamental rights of millions against the mighty State power.
Undoubtedly, its role in the enforcement of fundamental rights goes to the root of constitutional governance. However, this enforcement of fundamental rights itself has two dimensions. The traditional role in upholding fundamental freedoms touch civil liberties including free speech and an activist approach in implementing socio-economic rights which are claims or positive rights to food, shelter, health, etc.
No reason to show deference towards majority governments
The framers of the Constitution of India (COI) in 1950 unhesitatingly chose to enact a limited form of government. The idea of holding the State as accountable before the ordinary court of law was uppermost in their design of things for the Constitution. Going beyond the English doctrine of judicial review over administrative actions, the framers vested powers in the High Courts and Supreme Court to take a dig at the legislations passed by the Parliament or state legislatures. Even constitutional amendments were not given immunity from amenability to judicial review.
The suggestion coming from some legal luminaries that the Supreme Court should have deference towards the majoritarian decisions has no foundation in modern constitutionalism. Indeed, the idea is a ghost of authoritarianism. Those who think of fitting such an idea into the democratic Constitution must know that they are trying to fit a square peg in a round hole.
Moreover, the present representative system is imperfect. The first past the post system of election depends on securing more votes than rivals which may not constitute a majority of the votes polled in the election. At the national level, even though the present ruling party in India won 303 seats out of 542 seats in the Lok Sabha election held in 2019, it secured only about 38 per cent of votes. In fact, these 38 per cent voters formed less than 20 per cent of the total population.
Even in 1952, 1957, 1962, 1967, 1971 or 1984, when the Indian National Congress won hands down, the support of the total population to the ruling party was only around 20 per cent. Therefore, this theory of judicial deference in favour of majoritarian governments is fundamentally fallacious, if not a ridiculous proposition.
Undoubtedly, the judiciary is a legitimate arbiter between the government and its critics in a democratic set up. The only instance when the judiciary may have deference to the executive or slow down its intervention, could be in the situation when the decisions sought to be challenged are bipartisan. However, in the absence of such bipartisan decisions, the Supreme Court is expected to act fearlessly against the majoritarian regime.
SC’s journey as the upholder of fundamental rights
In the last seven decades, the Supreme Court has played a stellar role except during the Emergency. However, its non-interventionist role in the recent past is equated with the unfortunate role it played during the Emergency. But, the last word is yet to be written on this. Hope the Supreme Court asserts its constitutionally legitimate interventionist role and protects the migrants and decides quickly on the validity of political detentions and restores 4G internet in the Kashmir valley. The veiled arguments of the Union in Kashmir matters, which is really founded on the demised Korematsu case decided by the United States Supreme Court during World War II, will be hopefully shown its way out by the Supreme Court of India.
The first three decades after enactment of the COI in 1950 saw the judiciary asserting its traditional role of upholding freedoms and equality by undoing even the most popular measures relating to abolition of vestiges of feudalism by land reforms. The Supreme Court upheld fundamental rights even at the cost of being seen institutionally as a relic of rural capitalism or a friend of kulaks. This was the period in Indian judicial history when legalism was at its best.
However, when Emergency was imposed, decreeing the suspension of fundamental rights in Part III of the COI by the then Prime Minister Indira Gandhi, the Supreme Court ended with a disastrous decision in ADM Jabalpur case. The judges (except Justice H R Khanna) surprisingly placed life and liberty at the mercy of the majoritarian government by declining to exercise jurisdiction and rule on the legal validity of detention of political opponents.
The Supreme Court read COI as an artificial construct on a dry piece of clay. The mandate of common law or natural law that nobody shall be deprived of liberty except in accordance with law and as tested by an independent judiciary was shockingly sent down the Yamuna to the Ganges and finally flushed into the Bay of Bengal.
Rising from the ignominy, the Supreme Court began its next phase and focused on the interests of masses. During the Emergency, the COI was amended by the 42nd Amendment Act of 1977 to incorporate the words ‘socialist’ and ‘secular’ in the Preamble. Taking a leaf from the ideals of socialism, the judiciary turned into an activist institution. The requirement of locus standi, which acted as gatekeeper in Anglo Saxon jurisprudence, was relaxed. The decision in Maneka Gandhi in 1978 mandated a test of reasonableness in the procedure established by law. The meaning of life was creatively interpreted as life with dignity. Socio-economic rights were read into Article 21.
Sometimes, but not always, assistance was drawn from the Directive Principles of State Policy parked in the COI. On first reading of Article 21, it doesn’t seem to encapsulate the rights as claims against the State. It appears as a negative right or freedom. However, Supreme Court animated by the incorporation of word socialism in the preamble of COI, read Article 21 as incorporating positive rights or as claims against the State. A concept of affirmative action or the State responsibility towards its citizens was introduced. Even otherwise, doctrine of positive rights is consistent with international obligations assumed by India under the United Nations International Covenant on Economic, Social and Cultural Rights, 1966.
The refashioned juridical artifacts paved the way for judicial activism in implementing the said socio-economic rights. Article 21, weaponised as a positive right, was armed by the judiciary to wake up the inactive State or its officials. The Supreme Court has issued hundreds of directions to governments at the Centre and States to provide education, food, water, shelter, transportation, etc. on the premise that inaction by the State is illegal. The Supreme Court has also knocked out various archaic prison laws.
The observance of strict legalism in enforcing freedom and equality, ignoring Korematsu-style arguments by the Union, and implementation of socio-economic rights based on humanitarian jurisprudence built for decades from case to case cannot and should not be given up on the specious argument of a majoritarian doctrine. Interventionist Judiciary is a necessary shining sword of modern constitutionalism.
(Mohan Katarki is a senior advocate at the Supreme Court of India. Views are personal)
This article was first published on the website livelaw.in on June 4, 2020.
Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.