The Judiciary Needs to Be Gently Reminded About the Constitution and Its Key Concepts

India's constitutional courts were put in place to protect the rights of all, especially those not in the majority. The judiciary had a great opportunity to do just that but squandered it.

Someone very poignantly said, “We are all dying – that is the condition of living.”

Prime Minister Narendra Modi, who very bravely and unilaterally imposed the nationwide lockdown with just four hours’ notice on March 24, has now, after ostensible consultation with chief ministers, as shown on our television sets, lifted it from June 8. Of course, in a graded manner and with restrictions.

Perhaps he realised the meaning of the line I began this article with. Critics might rightly say that the timing of both decisions was wrong. 

If only he had kept national interest at heart and given serious thought at the end of January itself – by merely prohibiting foreigners from entering India and making Indians returning from abroad compulsorily go through four weeks of strict quarantine – the pandemic could have been better controlled. 

But that would have meant not being able to shake hands with Donald Trump during his visit. It would also have barred the entry of a few thousand NRIs to be part of the fanfare in Ahmedabad.

So that would have, in turn, meant no publicity for our prime minister and no work for his PR machinery to deliver a larger than life image of an international leader. 

Of course, a temporary ban on international visitors would have stopped hundreds of foreigners from attending the Nizammuddin Markaz. But then, how the minority bashing have become possible? And how would the police, especially in Delhi and Uttar Pradesh, have been able to criminalise the sickness of unfortunate patients?

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On a more pertinent note, New Zealand has declared itself a ‘coronavirus-free’ nation. And one of the reasons attributed is the timely banning of foreigners and the compulsory quarantining of returning citizens. That is how a responsible and responsive government acts.

In India, our government can play with the lives of millions of citizens and wreak havoc on the economy, further affecting hundreds of millions, with impunity. There is no accountability whatsoever.

Our politicians, across the spectrum, only care for themselves, their well cut images and electoral successes. What else can one say except that it is political nakedness which is on display in the Rajya Sabha election in Gujarat at a time of national crisis.

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On the one hand, the BJP government at the Centre invokes the Disaster Management Act to fight the ostensible disaster, and on the other it is creating a political disaster by using everything at its command to buy one more seat in the upper house. We, the citizens, have to sit and watch in indignation. 

In India, democracy functions only during elections. Once it is over, and they are in the driver’s seat, politicians forget who put them there. 

But they alone are not to be blamed. The very constitution which has created the executive has also created the legislature and more importantly, the judiciary.

The executive power of the Union vests in the president and he shall exercise that power in accordance with the constitution as per article 53 of the constitution . Thus that power is clearly hedged by the contours of the constitution and is not outside of it . 

The framers were clear in their intentions. There must be checks and balances within the state. Parliament may not keep that check in constitutional spirit due to majoritarianism of the party in power, although it should. Yet, the constitution of India is founded on the principle of ‘pluralism’ and rejects the idea of a single norm. Here, the judiciary’s role assumes great significance.

If there was no constitution, there would have been no power to strike down laws and executive actions. Judicial review is foundational in the Indian constitution and the judiciary alone can interpret the constitution. In fact, it is their duty.

The judiciary was, notably, not created by the framers to be “the least dangerous branch.”

The constitution establishes concepts and not conceptions. Clear provisions in the constitution emphatically say so. Framers gave citizens fundamental rights and enjoined the Supreme Court and the high courts to protect them under Articles 32 and 226 respectively. 

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Judicial review of laws and administrative actions is thus expressly mandated. The constitution recognises one paramount principle: “Be you ever so high, the law is above you.”

‘Judicial activism’ is therefore a misnomer. The constitution delegates power to the courts to enforce its own conceptions of political morality so long as its conception is relatable to standard concepts, i.e., the articles thereunder. 

It is political skepticism which seeks to label this as judicial activism. Skeptics seek to restrict judicial power by fashioning labels of judicial restraint or judicial deference as democratic arguments, saying moral and political principles must be resolved by institutions which are politically responsible – which courts are not. Democracy does not mean so. In fact there is no rule limiting judicial review. Our Supreme Court has gone to the extent of holding that “there is no decision which is un-reviewable under the constitution.” 

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Issues relating to fundamental rights should not be left to the majorities because our constitution seeks to restrain majorities.

If so, can such issues be left to the majority so it can become the judge in its own cause? Definitely not, as that would be inconsistent and unjust. Disputes involving citizens’ rights are best protected by courts rather than institutions of government, which would be clearly hostile. The only effective review is in courts. 

It would be unconstitutional to allow those in political power to be the sole judges of their own decisions.

Any argument of judicial tyranny is overshadowed by unfairness in allowing the majority to be a judge in its own cause. This is only to provide limits to the power of the majority and not to give any additional or unconstitutional power to the judiciary. 

Courts develop constitutional principles based on constitutional morality, plus a set of rules that justify governmental actions. Courts do indeed lean in favour of community morality or what is called the “public interest”; part of this process is to give meaning to life and dignity as encompassed in Article 21. 

The migrant crisis, involving violations of a bundle of those rights of hundreds of millions of citizens following the fateful lockdown demanded that the judiciary activate itself. If only the Supreme Court or a high court has stayed that declaration for a week or so to enable government to facilitate the transfer of migrant workers in a humane manner, the whole problem would have been solved without any affront to the government. This would have amounted to simple judicial function and not activism. The migrants had nowhere to turn. 

Also read: Have SC’s Directions to Redress Migrants’ Suffering Brought Necessary Course-Correction?

What a golden opportunity the judiciary missed of wiping away the tears of teeming millions! Their much delayed reaction to the crisis is an admission of initial failure and is too late and too little. 

How and if at all the nation compensates them for their sufferings is a vexed question which judges have not even attempted to answer. 

Judges, too, make mistakes. But they cannot simply forego their duty to uphold the basic human rights of citizens – the very rights which can be taken away by a heartless government. The danger of attracting the criticism of judicial activism is vastly overshadowed by the outcome of justice being meted out to citizens, especially from the poor and vulnerable sections of the society.

It was for these citizens that the Public Interest Litigation or PIL was conceived by great judges. In fact, the time has come to sensitise judges not just to the problems of the poor and helpless but as to their own powers and duties.

If this does not work, the nation must think of changing the process of selecting judges and not change the technique of judging. 

I am reminded of the words of a great historian who said:

I would not care whether the truth is pleasant or unpleasant, in consonance with or opposed to current views. I would not mind in the least whether the truth is or is not a blow to the glory of the country.

If necessary, I shall bear in patience the ridicule and slander of friends and society for the sake of preaching truth. But still I shall seek truth, understand truth, accept truth.”

This should be the firm resolve of every citizen, and even more so of every judge. 

Dushyant Dave is a senior advocate at the Supreme Court of India and the President of Supreme Court Bar Association.

The views expressed are personal do not represent the views of the Bar.