The Supreme Court’s recent directive on Government advertisements was uncalled for. The court cannot take over the task of deciding on policy matters that are in the domain of the executive. lines mustn’t be crossed
The Supreme Court has created a commotion by restricting the publication of photographs of Ministers and party leaders on Government advertisements. It has painted such publication of photographs as the development of a personality cult and said that using the image of one or a few individuals is the direct antithesis of democratic functioning. Two public interest litigations had drawn the attention of the apex court to the misuse of public funds to project individual functionaries of the Government or a political party. They had urged the court to curb the unnecessary excessive public expenditure through such advertisements.
The Supreme Court, while dealing with these cases, had formed a three-member committee to make recommendations on this issue, consisting of the former Director of the National Judicial Academy, the former Secretary General of lok Sabha and the incumbent Solicitor General. Besides suggesting a limitation on such expenditure on advertisements during election time and the printing of photographs of the President, Governors, Prime Minister and Chief Ministers, the committee also recommended that the party in power must not be mentioned in the advertisements. The latter must also not carry the party logo or have links to websites of politicians.
Apparently, such restrictions put a veto on the activities of a wayward and self-seeking Government. Publication of such photographs on the advertisements, thus trying to influence a public opinion, are at best unethical. The common man, instead of getting impressed, rather gets irritated by such brazen display of self aggrandizement. But these, directives have come when the Government has argued that the judiciary should not tread into the territory of policy decisions. Also, it argued that framing of the guidelines did not fall under the ambit of judicial preview, as an elected dispensation is answerable to Parliament. The Government also questioned the wisdom of the court to decide on advertisements that have political mileage.
The Constitution of India has clearly demarcated the limits of functioning of the three pillars of democracy. Where the legislature, Parliament and State Assemblies are to frame the laws, the executive is to implement the laws and the policies. The job of the judiciary is to decide whether, while framing or implementing the law, the right steps have been taken and whether the provisions of the Constitution have been met in spirit also.
Granting the possibility of one wing transgressing into the domain of the other a bit, one wing cannot totally encroach upon the activities of the other. Presently, the judiciary has been disbursing pensions, cleaning the municipal areas, ordering for transfers, making salary payments etc — all in the name of ‘judicial activism’. Maybe, it helps many when they are aggrieved at not getting justice from the executive. But should such infringement be allowed uncheckedIJ Will the Government start deciding the crores of cases pending with the courts for ages, making the argument that people do not get justice from the judiciaryIJ
Of course, the Supreme Court could have made suggestions in this particular case. The argument that the Government doesn’t listen, holds no water since the Government functions in a free, democratic environment where pressures are mounted from different sources. The President can’t undo any proposal sent by the Council of Ministers to him. He returns such proposal only once with suggestions. But that ‘once returned’ carries a lot of significance and creates a huge social and political impression, making it difficult for the Government to bulldoze. And there is the Comptroller and Auditor-General to examine whether the public money is properly spent. It is not for the judiciary to decide such cases. It becomes an infringement on the power of another constitutional body.
And, while showing mercy to the President and the Prime Minister in allowing their photographs to be printed on Government advertisements, the Supreme Court has also included the name of the Chief Justice of India. The Chief Justice of India is a Government servant who is appointed by the President, gets salary and retires one day to be eligible to get a pension. If his photograph or her is printed on Government advertisements, this can also justify the printing of photographs of the Cabinet Secretary and the Chief Secretary who are the bureaucratic heads. The Supreme Court, by suggesting the name of the Chief Justice of India, has expressed an inner desire to rule by proxy, which it is not mandated by the people of the country to do so. The judiciary is the arbitrator or the interpreter of law. The arbitrator cannot be a ruler.
This is judicial overreach and judicial legislation. The judiciary is not the guardian of the voters’ conscience. It cannot pose itself as Plato’s Philosopher King, who is devoid of any personal interest. This kind of directive indicates a dangerous violation of democratic conventions, which will lead ultimately to subversion of democracy itself. The Supreme Court cannot swing violently from one extreme of submitting meekly to the dictates of Indira Gandhi during the Emergency and even declaring that “right to life does not exist”, to trying to put itself as the sole keeper of the public interest.
The three wings of democracy must draw a laxman Rekha for themselves, which should not be trespassed. The judiciary will do well to function as a ‘Raj guru’, giving sage advice to the Government. The rest should be left to the people — the ultimate masters — for their judgement. India is a democracy.
(The writer is a former Member of Parliament)