When the apex court enforces a law that the majority fails to relate with, there is a disconnect

The Constitution of India is a living document. Since its adoption by the Constituent Assembly on November 26, 1949, the text of the Constitution has been amended several times by the Parliament. Although Parliament represents the popular will of the people, yet when it comes to winning public trust, the judiciary enjoys more credibility over the executive or the legislature.

One reason could be that for an average citizen, accessing courts to redress grievances is more prompt and convenient than to approach the concerned elected representative. Second, judicial process follows the principles of natural justice where no citizen can be denied justice without being heard. And lastly, the judiciary’s task to fiercely defend the constitutional ideals of the Preamble and uphold the Fundamental Rights of citizens, gives it a high moral place in the hearts and minds of citizens. When everything fails, there is hope that the judiciary will never fail its citizens.

It is this hope that has led the judiciary to attain an important place in the development of law in the country. But there is a flip side to it too. Judiciary’s powers are restricted by the concept of separation of powers. Though the judiciary, executive and legislature operate in separate compartments, yet functionally, the Supreme Court and High Courts have got extraordinary powers by which they can nullify decisions of the executive and quash laws passed by Parliament. This power of judicial review has led the judiciary to hold an overarching presence over the remaining organs, giving it some sort of a superiority, which the Constitution did not envisage.

This has come to mould even the public opinion. For instance, the Supreme Court recently assured to ease inconvenience faced by public due to demonetisation of Rs 500 and Rs 1,000 currency notes. At the end, when the matter was decided, no interim orders were passed. But the judges were not accused of letting down the public. Perhaps, nobody will. Since in the absence of a lokpal, on which the Centre has been dragging its feet, the judiciary is seen as the lone sentinel to punish corruption in public life. This is amply evident through the court-monitored investigations into the recent 2G spectrum scam and Coalgate. But the question one must ask is: Has the judiciary lived up to the trust placed by the public.

In October 2015, the Supreme Court struck down The National Judicial Appointments Commission Act that was passed by both Houses of Parliament and ratified by about 20 State Assemblies. In one stroke, the new system was out and the old, existing collegium system was revived. The judges did admit that the collegium system was opaque and needed reform. It allowed the Centre to amend the procedure under collegium system. When the Centre insisted on making appointments as per the amended procedure, the Supreme Court in a PIl threatened to summon the Prime Minister’s Office official raising this objection. By a judicial order in a PIl, the Supreme Court has refused to honour the verdict pronounced by its Constitution Bench. By their own act, the judiciary has caused further suspicion over a closed-door mechanism to select judges.

While talking of transparency, the judiciary undertook an exercise to reform the richest cricket body of the world, the Board of Control for Cricket in India (BCCI) by making its funds accountable in the interest of the game. The court constituted a Committee of three judges headed by former CJI RM lodha, who interacted with veterans and experts of the game and proposed a slew of reforms. It was implemented by way of a Court order. Since BCCI President Anurag Thakur and Secretary Ajay Shirke refused to comply, they were thrown out by another judicial order. A panel of administrators will now run the Board, the names of which are to be proposed by two senior lawyers — Anil Divan and Gopal Subramanium. Following the court’s verdict, Thakur replied, “If the Supreme Court feels that the BCCI will do better under retired judges, I wish them good luck.” One needs to ask whether judges should become administrators.

Explaining the boundary of judicial review, a five-judge Constitution Bench in the famous Bachan Singh vs State of Punjab case, decided on August 16, 1982, said: “The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making.” It quoted lord Devlin of the House of lords, as saying, “Judges are the keepers of the law and the keepers of these boundaries cannot, also, be among out-riders.”

There is a growing feeling that judicial activism is gradually taking the shape of judicial adventurism. Take for instance, a recent diktat of the Supreme Court asking cinema halls in the country to play the national anthem before screening of a movie. By the same order, the courts declared that all present in the hall should stand up. All this was an exercise in constitutional patriotism.

So what if a citizen fails to stand up. Is he to be treated as a criminalIJ Is the idea of patriotism to be practiced inside a cinema hall aloneIJ When the Supreme Court, as the final arbiter of justice, fails to think of these questions, and decides to enforce a law that the majority fails to relate with, there is a danger of a disconnect, that is certain to impact the public trust reposed in the judiciary.