Supreme Court cannot bear the brunt of India’s fragile governance

It is difficult to have a purely normative theory of the role of the judiciary in India – balancing the need for the incorporation of good governance principles while aligning with its powers under Article 32.

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ARTICLE 32 is said to be the heart and soul of the Indian Constitution; it acts as a safeguard for all the other fundamental rights. However, it does not have indefinite jurisdiction – it is limited to fundamental rights, as demonstrated by the existence of Articles 139 and 226 in the Constitution.

However, the Indian judiciary has come to be seen as an institution of accountability; the Supreme Court has transformed the jurisdiction under Article 32 from a system for the enforcement of rights to a system that checks the governance in the State. It employs not only adjudicatory jurisdiction but also promotes ideals of a socioeconomic and political State, particularly the principles enshrined in the Preamble of the Constitution. This is done through an expansive, non-textualist interpretation of the fundamental rights, calling on the positive obligation of the State to recognise and secure the effective enjoyment of these rights. 

However, certain issues arise with the exercise of this power. Is it the concern of the court, under Article 32, to address every problem in Indian governance? Are there constitutional limits on the Supreme Court in its perceived ‘pursuit of justice and good governance’? To what extent is this pursuit legitimate judicial intervention, before it can be classified as overreach? 

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Limits of Article 32

The judiciary has come to be perceived as an assertive organ in the functioning of the nation. Under Article 32, the Supreme Court also has the power of judicial review over the actions of the Executive and Legislature, provided they are directly related to the fundamental rights. The court has also widened the ambit of fundamental rights, in a sense engaging in judicial ‘law-making’; it has developed new jurisprudence by looking at the lacunae in present law and importing principles from international jurisprudence. Furthermore, the court has laid down policy guidelines and directives, to promote the enforcement and enjoyment of fundamental rights and fill the vacuum caused by poor governance.

Under Article 32, the court can also entertain public interest litigation (‘PILs’) filed by an individual on behalf of a group of persons, seeking the enforcement of their collective rights. This stems from the fact that not everyone has the wherewithal to approach the courts due to poverty or ignorance of their rights. Furthermore, the traditional rule of standing, wherein only a person who has suffered a legal injury can seek redressal, disadvantaged marginalised groups and hindered their access to justice. However, in S.P. Gupta versus Union of India (1981), it was held that “any member of the public can maintain an application… under Article 32 seeking judicial redress”.

It is important to note the distinction between a public interest writ and a writ filed in public interest. While the former is a writ wherein the subject matter is one of public interest, the latter is a writ filed on behalf of a section of the public, for the enforcement of a specific fundamental right.

PIL has also been institutionalised and made accessible to the common person through the development of the court’s epistolary jurisdiction wherein letters can form the basis of a proceeding.

However, despite the liberalisation of the procedural requirements for filing a PIL, it is important to note the distinction between a public interest writ and a writ filed in public interest. While the former is a writ wherein the subject matter is one of public interest, the latter is a writ filed on behalf of a section of the public, for the enforcement of a specific fundamental right. This distinction becomes important in our discussion of two cases, later in this piece.

There is no doubt that PILs have played a vital role in the realisation and advancement of rights. After the court clarified the issues of locus standi and procedure to approach the court under Article 32, it turned its focus to the basis of the PILs themselves – good governance principles read into/enshrined within the fundamental rights. 

Right to good governance: genesis and impact

PILs have enabled the court to touch upon complex social issues such as exploitation, gender discrimination, environmental pollution, and so on. The discourse around PILs and social action litigation stems from the emergence of good governance as a standard within which public institutions operate.

Governance refers to the ability of the State to serve its people – rules, processes, and procedures through which their needs are articulated, resources are managed, and power is exercised. As society develops, this idea of governance evolves into one of ‘good governance’. Good governance not only means the development of the rule of law, but also includes principles such as transparency, participation, accountability, effectiveness, efficiency and inclusivity. It is spearheaded by the ideal of promoting the economic and social aims of the State, in accordance with the aspirations of the people. Good governance is vital because it is both a standard for the government to align its actions with, as well as a right of the citizens. 

While there is no specific ‘right to good governance’, Article 37 of the Constitution prescribes that the principles enshrined in the Directive Principles of State Policy (‘DPSPs’) are fundamental in the governance of the country, although not judicially enforceable. Even though DPSPs are not justiciable, they lay the framework through which social and economic transformation can take place in a democracy. 

The judiciary has come to play an important role in incorporating principles of good governance into concrete legal principles, mainly by expanding the right to life jurisprudence in our country. The Supreme Court has contributed greatly to governance in the areas of livelihood, environment, education, and police reforms, to name a few.

For example, in Hussainara Khatoon versus Home Secretary, State of Bihar (1979), the right to a speedy trial was recognised and inordinate delays in criminal trials were outlawed, in consonance with the ‘effective and efficient’ feature of good governance. In consonance with the ‘transparency’ feature of good governance, in Reliance Petrochemicals Ltd. versus Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. (1988), it was held that the people must possess the right to know and right to be informed about the conduct of state affairs. In Mohini Jain versus State of Karnataka (1992), the Supreme Court read the right to education under the right to life.

The judiciary has come to play an important role in incorporating principles of good governance into concrete legal principles, mainly by expanding the right to life jurisprudence in our country.

These judicial interventions have taken place against the backdrop of the failure of the Parliament and other governmental bodies to acknowledge and implement good governance principles. While the government has the responsibility to create the framework within which good governance operates, the judiciary has the responsibility to redress infringement of these principles – the court, in theory, does not have the positive obligation to engage in the creation and implementation of these principles.

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Judicial interference as a panacea

Undoubtedly, the principles of good governance are strengthened due to the creative expansion of fundamental rights. Article 32 also ensures that public institutions are held accountable in conforming to these rights. However, it can be argued that the good governance agenda is ‘unrealistically long’ and only increases with time. Questions arise about what is essential, what should be prioritised and what is realistically feasible. 

Another important question is – what is within the scope of the working of the judiciary under Article 32, and what is not? It is evident that courts are not bound by semantics; judges exercise a kind of sovereignty over the meaning of constitutional provisions. With this comes the issue of discretion. The underlying assumption is that a decision must be derived from a definitive rule of law to not be arbitrary. However, this reading in of the law brings with it the aspect of discretion; the court does not have a consistent approach in dealing with its role as a policymaker.

In 2020, the Supreme Court even said that it is trying to discourage petitions under Article 32 since they can just approach the high courts for redressal. This is despite the contradictory position that redressal-seekers need not approach the high courts first. 

Furthermore, the court has held contradictory positions about laying down guidelines and formulating policy. While it showed no reluctance in Vishakha versus State of Rajasthan (1997) and M.C. Mehta versus State of Tamil Nadu (1996), it has refrained from doing so in the case of ragging in colleges in the State of H.P. versus Parent of a Student of Medical College (1985). The court explicitly stated that “it is entirely a matter for the executive branch of the government to decide whether or not to introduce any particular legislation.” While it could be argued that ragging infringes on a person’s right to life and right to dignity, the court did not make this inference. Certainly, this discretionary power of the judiciary presents a flaw in this system.

The Supreme Court is not only interpreting the provisions of the Constitution, but it is also actively promulgating good governance principles and values through the expansion of existing rights. It is essentially formulating policy, taking over legislative functions while holding the executive accountable.

The Supreme Court is not only interpreting the provisions of the Constitution, but it is also actively promulgating good governance principles and values through the expansion of existing rights. It is essentially formulating policy, taking over legislative functions while holding the executive accountable. This presents the dichotomy between ensuring justice to the poor through PILs and pronouncing good governance principles in a way that does not undermine the democratic framework.

It is claimed that the judiciary, an undemocratic institution, is given too much power to usurp the functions of the legislature, an elected body. It is evident that the Supreme Court is looking toward a conception of public legitimacy, rather than a rigid adherence to the constitutional limits; while it does not dispense with the rule of law in toto, it utilises it to command democratic legitimacy and expand the governance of the government.

In this context, it is important to look at two cases. In the telecom case judgment of 2012, the allocation of 2G spectrum was challenged by a PIL. It was allocated on a first come first served basis at 2001 prices despite its value in 2007-2008 being significantly more. Licences were issued to ineligible applicants, and the throwaway prices came at a huge cost to the public exchequer – violating several good governance principles. 

While corruption cannot be pinned to a specific fundamental right, the Supreme Court took up this PIL and quashed the licences issued. Certainly, the court has used the tool of PILs to monitor the actions of the government. In a response to the claim of ‘judicial overreach’, Justice G.S. Singhvi noted that “[if] the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to [the] public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest”, rejecting the limitation of the power of judicial review. The court, while establishing that the determination of whether an allocation is in the interest of the public will be judged by the judiciary and not by the executive, instigated a larger movement towards the utilisation of Article 32 as a means to check governance. 

In Vineet Narain versus Union of India (1997), in a matter concerning corruption, similar questions of jurisdiction under Article 32 arose: Do we have a right to be protected against corruption? Are fundamental rights being impacted directly? Relying on Articles 32 and 142 of the Constitution, the court issued directives to make the Central Bureau of Investigation (‘CBI’) more autonomous, and placed the CBI under the supervision of the Central Vigilance Commission, to make it free from executive control. 

Blurred lines

In the telecom case, the court failed to distinguish between a matter ‘filed in public interest’ and a ‘public interest matter’. In Vineet Narain, the court, under Article 142, interpreted the power to do complete justice and deployed good governance principles to restructure the framework of a governmental institution.

Regarding the extent of the power of the Supreme Court in engaging in judicial intervention under Article 32, it can be argued that this power cannot override constitutional provisions. While it is vital to correct institutional failures, it is important to keep in mind that the Supreme Court does not have unlimited power to do so. While this could work in the short run, in the long run, it perpetuates a kind of ‘constitutional lawlessness’ – undoing the principles, provisions, and structures entrenched in the Constitution in the pursuit to ensure good governance. 

It is evident that the judiciary is operating as an institution of accountability and public legitimacy. In the context of governments whose administrative failures deny citizens their right to good governance, the court is driven not by rigid adherence to constitutional provisions, but by a sense of what the public requires. This is, perhaps, in consonance with the Preamble, which envisions securing justice, liberty, and equality for all.

While the Constitution does not mandate a strict separation of powers, the courts must not blur this line; it can perhaps discourage the Parliament and other public functionaries from taking on issues because of an assumption that the judiciary will take some action if they do not. While the judiciary is an institution of accountability, in filling this vacuum, it might make the other branches less accountable.

PILs and the practice of laying down guidelines narrow the divide between the roles of the organs of the government. The venturing of the court into the realm of law-making also brings with it some dangerous consequences. While the Constitution does not mandate a strict separation of powers, the courts must not blur this line; it can perhaps discourage the Parliament and other public functionaries from taking on issues because of an assumption that the judiciary will take some action if they do not. While the judiciary is an institution of accountability, in filling this vacuum, it might make the other branches less accountable. 

Also read: Mandatory pre-legislative review could enhance constitutional culture in India 

In an ever-growing democracy, judicial intervention certainly helps realise the right to good governance and enhances democracy. The court is actively engaging in democratic positioning; it sees itself as an actor in a democratic negotiation rather than just an adjudicator, blindly applying provisions of the law. However, it is justifiable to the extent that it does not instigate a democratic backlash – a democratic backlash is a retaliation of other public institutions (overturning of decisions, for example) to the position of the court on a certain issue. Moreover, placing the unfair burden of social and economic transformation of the country on the judiciary, could impact its functioning in other matters.

Undoubtedly, PILs and this kind of judicial intervention by the court act as an alarm clock to draw the attention of the Parliament toward certain issues. However, it is important to keep in mind that not all the issues plaguing India are issues that require judicial attention; the Supreme Court cannot be made to bear the brunt of the nation’s fragile governance.  

The Leaflet