Supreme Court’ Intervention Is Cri De Coeur of Hour | Vijay Kumar

by Vijay Kumar *

The suo motu cognizance taken by the Supreme Court and it’ detailed order on 30th April seeking numerous relevant information on multiple issues concerning deadly second wave of covid-19 and already ongoing judicial scrutiny have triggered criticism by Advocates and intellectuals deemed close to the regime. In particular, Subhash C. Kashyap, former secretary-general of Lok Sabha and constitutional expert, in his Article “Why the Judiciary must step back” (17th May, 2021, HT) argued strongly for judicial hand off. The arguments offered by him and other apologists of ruling dispensation are unsustainably conservative, and should have no place in constitutional jurisprudence evolved in last fifty years, especially after the formulation of ‘Basic Structure’ doctrine in historic Kesvananda Bharati case in 1973. The Supreme Court abdicated it ‘power last year during migrant crisis and deference to wholly incompetent and insensitive executive will even in the face criminal abdication of basic duty erode it’ credibility.

Subhash Kashyap starts with assertion that executive is accountable to the Parliament, and hence, judicial oversight is uncalled for. This assertion is factually unsustainable and constitutionally untenable. The executive is answerable to the Parliament and it’ very existence depends on confidence of Lok Sabha, but it is also accountable to constitutional courts and other constitutional functionaries like Comptroller and Auditor General. The power of judicial review under Articles 32 and 226 of the Constitution for enforcing fundamental rights and other legal rights was conceived in most expansive terms by the framers of the Constitution in order to hold executive to account. Subhash Kashyap’s thesis that there is a limited judicial review as the framers refused to import due process from American Constitution is theoretically implausible. Unlike US, where judicial review was brought in through the process of interpretative hermeneutics by historic judgment of Chief Justice John Marshall in famous case of Mallbury v. Madison, the Indian Constitution guarantees judicial review in widest terms.

Subhash Kashyap has further anchored his textual position in constituent power of the Parliament to amend the Constitution. In the process, he has ignored the concept of doctrine of ‘basic structure’. After the formulation of theory of ‘basic structure’, constituent power is shared between higher judiciary and the Parliament, as amendment is subject to fetter of that theory. The very constituent power to amend the Constitution is an unmistakable pointer to the Constitution being living document and its meaning cannot be frozen at the time of it’ framing. The untenability of Subhash Kashyap’s position stems from the fact that he, like all conservatives, is fixated with meaning of constitutional text as it stood on 26th January, 1950. Subhash Kashyap has approached the issue purely from the westminster model in which Parliament is undoubtedly sovereign. But sovereignty does not reside exclusively in Indian Parliament, as the framers of the Constitution, after opting for parliamentary democracy, also made conscious choice for constitutional democracy, the effect of which is the supremacy of the Constitution and Parliament being creature of it, is subordinate to it. The Constitution and Constitutional jurisprudence grows with the trajectory of practice of politics and exercise of political powers.

As is the case with basic structure, Subhash Kashyap has also overlooked the emergence, and eventual consolidation, of public interest litigation, which has resulted in constitutional court becoming a democratic branch of co-governance. The PIL jurisprudence brought to the fore interrogation of policy formulation by the executive with the aid of ever widening horizon of right to life guaranteed under Article 21 of the Constitution. Once the constitutional courts emerged as problem-solver and institution of co-governance in terms of vastly amplified contours of right to life, policy formulation cannot be immune from judicial scrutiny.

The next argument expounded by Subhash Kashyap is that the executive is accountable to “We the People”. Subhash Kashyap conveniently ignores that executive is accountable to “We the People” once in every five years, whereas the essence of parliamentary democracy is that executive must be accountable on day to day basis. “We the People” argument boils down to position that election is the only mode for securing accountability. The ballot is an important aspect, but merely one of the aspects of democracy which is sustained through press freedom and enforcement of rights by independent judiciary. Thus, suo motu intervention of the Supreme Court cannot be faulted on the romanticized notion of the Parliament being accountable to “We the People”. In fact,judicial intervention is cri de Coeur of hour.

Today, right to life is under threat from multiple sources ranging from arrest of innocent peoples for criticizing the government to lack of access to hospital beds, oxygen cylinders, drugs, even space in cremation and burial grounds and the political complicity in unchecked profit over people through unethical exploitation and extortion by private hospitals, oxygen suppliers, diagnostic centre, ambulance and woods in crematorium etc. More worryingly, the politics of the day is polarized to the irreconcilable degree where the State is pitted against other State and against Centre, and, finally, the different price of vaccine is plainly discriminatory and is repugnant to the over-arching ethos of Article 14 of the Constitution.

The exercise of power of judicial review entails the submission of relevant facts and figures through sworn affidavit. The regression of full-blown crisis into catastrophe of Himalayan magnitude warrants that lack of transparency is interrogated and full facts backed by data are brought in public domain. Since Parliament is dysfunctional, public interest desiderates that full facts be placed before the court in order to further the public interest. The arrogant, extravagant and crude assertion of judicial overreach taken in voluminous affidavit filed by The Govt of India only reinforces the heightened sense of discomfort in placing full facts before the nation. The advocacy for judicial restraint will only obnubilate the opacity and undermines public interest by frustrating the right to know----an indispensible facet of freedom of speech and expression. Compelling the government to share data by judicial fiat will advance the right to know, and thereby subserve the public interest.

The Parliament is paralyzed ever since the onset of Corona Virus and even virtual sitting of select committee of the Parliament is not being allowed. The critics of judicial intervention are completely silent on mind-boggling rise and ever-widening reach of the executive. The Cabinet form of government has already degenerated into Prime Minister’s dictatorship. The power of judicial review, perforce, has to correspond with ever-increasing executive power. Therefore, the bogey of judicial overreach lacks as much in proportion and reality as in constitutionality.

* (Vijay Kumar is Advocate, Supreme Court. He is also the author of ‘The Supreme Court of India’ ‘Policy Formulator’ Or Active Protector’?)