Supreme Court Seems To Be Drifting From A Rights' Court To An Executive Court: Former Law Commission Chairman Justice AP Shah [Video & Full Text]

Former Chief Justice of Delhi High Court, Justice (Retd) AP Shah has expressed disappointment at the manner in which the Supreme Court has been functioning lately. As per his remarks, made while speaking at the 4th LC Jain Memorial Lecture on Monday, the top court "seems to be drifting from a rights' court to an executive court".The Lecture was organized by IIC,ADR and LC Jain Family.Justice Shah said, "[Supreme Court is] behaving in a way that is indistinguishable from the government, often issuing important policy decisions through its judgements, prioritising cases in specific - and sometimes worrisome - ways, and undertaking actions that would ordinarily be considered the domain of the government." These remarks find their genesis from the indulgence of the Supreme Court in preparation of the National Register of Citizens. "Inarguably, this was an administrative exercise, which the executive and the bureaucracy ought to have been responsible for," Justice Shah said. This indulgence, he explained, has ousted the Supreme Court from its power to correct any illegality that may have been committed in a process that identified 1.9 million persons as foreigners. He said, "Instead, we had a process that was "overseen" by the Supreme Court, and primarily under Chief Justice Gogoi, although many would argue that the Court "oversaw" it less, and "controlled" it more. As a result of this, we were faced with a situation where any concerns with the NRC became impossible to challenge judicially, for the judiciary itself was conducting the process!" Justice Shah also spoke about the Court's "new found attraction for sealed covers" in recent cases viz. the NRC case, the Rafale case, the CBI chief's case, and the electoral bonds case. By allowing delivery of documents and facts in sealed covers, that otherwise ought to be made public, the Court is "signalling" that it prefers the work ethic of the executive, believing truly that such secrecy is essential to deliver justice, Justice Shah said. He continued, "Secrecy can - in limited circumstances - be justified by the executive, but the distinguishing feature of a judicial institution is transparency, for only then, can the institution assure the people that it is giving everyone a fair and equal chance to be heard." He has also expressed disagreement with a 9-judge bench decision of the Supreme Court as per which, questions of law can be referred to larger bench in a review petition. On Monday, the bench headed by CJI SA Bobde rejected a contention challenging the legality of referring questions to a larger Bench in a review petition, without giving any reasons for it conclusion.In the backdrop, the 2018 Sabarimala verdict of the Supreme Court came to be challenged in a batch of review petitions. However, in November 2019, while hearing these review petitions, the Supreme Court passed a curious order in Kantaru Rajeevaru v. Indian Young Lawyers Association, directing that the Sabarimala review petition as well as other writ petitions involving 'questions related to essential religious practices will remain pending until the determination of the questions (formulated by the majority) by a larger bench. Notably, the review petition itself was not referred to a larger bench; and was only kept pending till the adjudication of the referred questions by the larger bench. In this context, Justice Shah said, "The majority's order in the Sabarimala review petitions seems to be beyond the scope of Article 137 of the Constitution… in Kantaru Rajeevaru, the Court directed a fresh hearing of the Sabarimala matter, by a larger Bench, without any reasons for the review, and without pointing out any grave errors in the judgment under review. The order did not even endorse Justice Malhotra's dissent in the original Sabarimala judgment. Instead it tagged the Sabarimala matter with other pending cases that raised common issues regarding the interpretation of Article 25 and 26, even though those cases were not before the Court." He added that it also raises questions about the perceived finality of Supreme Court judgments. "The Supreme Court has often been characterised as supreme in the sense of final, but not infallible. The Court's order in Kantaru Rajeevaru has now upended the assumptions about its judgments being final." He also said that omission to stay the operation of the Sabrimala judgment in the meanwhile has resulted in havoc, as the implementation of the judgment hangs out to dry. He cited an incident of December 2019, whereby the Supreme Court declined to pass any order on the petition by two women activists seeking a direction to ensure safe entry in the Sabarimala temple on the ground that the issue was "very emotive"; it did not want the situation to become "explosive"; and that despite there being no stay, the fact of the referral meant that the judgment...

Supreme Court Seems To Be Drifting From A Rights' Court To An Executive Court: Former Law Commission Chairman Justice AP Shah [Video & Full Text]

Akshita Saxena

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