The millions of migrants breathed a sigh of relief when the Supreme Court of India (SC) passed its interim directions on May 28 in a suo motu Public Interest Litigation (PIL) to redress their miseries caused by the unplanned lockdown to beat the coronavirus. However, the extraordinary intervention sparked a debate whether, SC should have refrained itself to the majoritarian art of governance.
Needless to say that the Supreme Court is the seat of justice for arbitrating between the individuals in respect of property matter, contractual rights or issues touching their personal matters, deciding on criminality of accused, adjudicating on federal disputes and finally, 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 the 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 activist approach in implementing the socio economic rights which are claims or positive rights to food, shelter, health, etc.
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 ordinary court of law was uppermost in their design of things for constitution. Going beyond to 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 the constitutional amendments were not given immunity from amenability to judicial review.
The suggestion coming from legal luminaries that SC should have deference towards the majoritarian decisions has no foundation in modern constitutionalism. Indeed, idea is a ghost of authoritarianism. Those who think of fitting such idea in to the democratic constitution must know that they are trying to fit square peg in a round hole. Moreover, the present representative system is imperfect. The first past the post system of election depend 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% of votes. In fact, these 38% voters formed less than 20% of the total population. Even in 1952, 1957, 1962, 1967, 1971 or 1984, when Indian National Congress won hands down, the support of total population to the ruling party was less than 20%. Therefore, this theory of judicial deference in favour of majoritarian Government is fundamentally fallacious, if not a ridiculous proposition. Undoubtedly, judiciary is a legitimate arbiter between the Government and its critics in a democratic set up. The only instance when judiciary may have deference to executive or slowdown its intervention, could be in the situation when the decisions sought to be challenged are bipartisan. However, absent such bipartisan decisions, the SC is expected to act fearlessly against the majoritarian regime.
In last seven decades, the Supreme Court has played a stellar role except during emergency. However, non-interventionist role in the recent past is equated with the unfortunate role it played in emergency. But, the last word is yet to be written on this. Hope, SC asserts its constitutionally legitimate interventionist role and protects the migrants and decides quickly on the validity political detentions and restores 4G Internet (if Committee doesn't restore) in Kashmir valley. The veiled arguments of Union in Kashmir matters which is really founded on demised Korematsu case decided by US Supreme Court during World War II will be hopefully shown it's way out by the SC.
The first three decades after enactment of the Constitution of India (COI) in 1950 saw the judiciary in 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 SC 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, SC ended with disastrous decision in ADM Jabalpur case. The judges (except Justice H R Khanna) surprisingly placed life and liberty at the mercy of the majoritarian by declining to exercise jurisdiction and rule on the legal validity of detention of political opponents. The SC read COI as an artificial construct on a dry piece of clay. The mandate of common law or natural law that no body shall be deprived of liberty except in accordance with law and as tested by an independent judiciary was shockingly sent down the Yamuna to Ganges and finally flushed into Bay of Bengal.
Rising from the ignominy, the SC begun its next phase and focuses on the interests of masses. During emergency, the COI was amended by 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 activist institution. The requirement of locas 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. The socio economic rights were read into Art 21. Sometimes, but not always, assistance was drawn from the directive principles of State policy parked in the COI. On first reading of Art 21, it doesn't seem to encapsulate the rights as claims against State. It appears as a negative right or freedom. However, SC animated by the incorporation of word socialism in the preamble of COI, read Art 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 United Nations International Covenant on Economic, Social and Cultural Rights, 1966.
The refashioned juridical artefacts paved the way for judicial activism in implementing said socio economic rights. The Art 21 weaponised as positive right armed the judiciary to wake up the inactive State or its official. The SC has issued hundreds of directions to the Governments at Centre and States to provide education food, water, shelter, transportation, etc. on the premise that inaction by the State is equally illegal. SC also knocked out archaic prison laws.
The observance of strict legalism in enforcing freedom and equality ignoring korematsu style arguments by Union and implementation of socio economic rights based on humanitarian jurisprudence built for decades from case to case cannot and shouldn't be given up on the specious argument of majoritarian doctrine. Interventionist Judiciary is a necessary shining sword of modern constitutionalism.
Views are personal only
Author is a Senior Advocate at Supreme Court of India