Judiciary Entering Forbidden Arena

Some of the recent directions given by various courts are beyond their jurisdiction. The task of governing the country should be left with the Government

During the past few weeks, in the wake of Corona virus’s second wave hitting its peak, we have been having some really interesting observations from the higher judiciary. On April 24, 2021, a Division Bench of the Delhi High Court observed that it will “hang any person” who tries to obstruct oxygen supplies to hospitals in Delhi. Similarly on May 4, a Division Bench of the said court told the state counsel that, “you can put your head in sand like an ostrich, we will not” and issued contempt notice against the Union Government, for failing to supply 700 MT of oxygen to Delhi, everyday.

A bench of the Madras High Court said on April 27, 2021 that the Election Commission was singularly responsible for the second wave of COVID-19 and should probably be tried on murder charges for their failure to ensure adherence to COVID-19 protocols, during the election. The observations, of which the Supreme Court later said: “those were harsh and inappropriate”. The Supreme Court further emphasised that “there is need for judges of superior courts to exercise restraint…..”. However, the judicial quote that probably takes the cake is the one, in which the Delhi High Court on June 1, 2021, while directing the Government to prioritise younger people over older ones, when it came to administering Amphotericin-B, a drug used to treat Mucormycosis, observed that the young are the “future of the country” and need to be saved, while the elderly have , “lived their life” and that the Government should learn from the foreign countries in this regard. It must also be borne in mind that not all such observations get reported in papers. Any practicing lawyer, who has put in years, will have much more to narrate, usually the quotes that get to be cited the most, are the ones laced with rare humour.

However, the question is what makes the higher judiciary, at times, make such sweeping or even intemperate remarks, when the role assigned to higher judiciary in the Constitution makes it almost necessary that the observations that come from a judge holding a court, should always be tempered with moderation, restraint, discipline and even wisdom. Is it the extraordinary hard work that the judges need to put in, in order to keep up with ever increasing piles of case files or is it because the higher courts have come to firmly believe that they are the ultimate arbiters in the country and therefore every order or decision or policy of the state must get their stamp of approval, for things to move forward, at all?

It has long been settled and accepted, even by judicial verdicts of the apex court, that the courts are not ordinarily to interfere in the policy matters of the State. In Census Commissioner & others Vs R Krishnamurthi (2015) 2 SCC 796, where a High Court had issued directions to Census department to conduct caste-wise census to achieve social justice, the Supreme Court held, “it is not within the domain of the court to Legislate…. The courts have the jurisdiction to declare the law as unconstitutional …… . But the courts are not to plunge into policy-making by adding something to policy by way of issuing a writ of mandamus. There, the judicial restraint is called for, remembering what we have stated in the beginning…”. What the judgment states in the beginning are the various quotes (all worth reading), aimed at reminding that “…refrain and restraint are the essential virtues in the arena of adjudication because they guard as sentinel….”. One such quote mentioned is from “centuries back” of Francis Bacon, who said thus: “Judges ought to be more learned than witty, more reverend than plausible and more advised than confident. Above all things integrity is their portion and proper virtue. …Let the judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions but yet lions under the throne”.

Again in Union of India Vs Indian Radiological & Imaging Association, it was simply held that, “the wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review”.” Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature”.

Many more such verdicts, dripping in wisdom, can be mentioned here but these two are enough to illustrate the point. The question, however, that begs an answer here is, why do very often courts in India forget or neglect such pearls of wisdom laid out by their own revered seniors? Why nowhere else in the world, given the global scale of the pandemic, apart from India, have the courts, distrusting the State, taken upon themselves to arrange for oxygen, medicines and the vaccines and also to direct which section of patients be attempted so be saved and which should be allowed to let go for having “lived their life”. These kinds of directions without any doubt are beyond the jurisdiction of the courts. These are clearly the arenas which must be left for the Government to govern, preferably with the help of the experts.

An assumption that all in the Government are either fools or are corrupt or simply incompetent cannot always be a valid starting point of all judicial actions. The courts must never disregard that the preamble of the Constitution of India unequivocally makes the ‘people of India’ the very source of all the power that flows from the various provisions of the Constitution. It is thus, us, the people of India, who are the ultimate source of power in India. It is these very people who go to polls every five years to elect their representatives in Parliament and the State legislatures, who in turn must alone, as the chosen representatives of people, enact the laws and frame the policy for the people of India. Only these representatives, empowered by almost a sacred process of elections, are answerable and accountable to people of India and therefore alone have the power to enact laws and to frame the policy governing “we the people of India”, deserving, therefore, some respect, of the courts as well. The people of India in turn have the right and the power to change their representatives, in the next elections, if and when they do not approve of the policies or the laws framed by their elected representatives.

The observation of the CJI on June 30, that “the mere right to change the ruler once every few years, by itself need not be a guarantee against tyranny of the elected” has to be taken to mean that tyranny of the elected, whenever it takes place, is also to be curbed by application of laws of crime and procedure, etc., but it cannot be taken to mean that higher judiciary can be allowed to have a free run, even when it came to formulating policy and the laws by the legislature, for it is this, which is the prime purpose for which the elections are held and elected representatives are elected at all. Moreover, as some of the observations mentioned above show, this debate also raises a question, how the tyranny of the unelected and in powerful office, for a long haul, is to be dealt with?

We all know how the number of pending cases, awaiting their turn to be heard and decided are piling up, by the day, in all courts in the country, will it, therefore, be not a more useful and purposive use of the court’s time to hear and decide pending cases of ordinary folks, then to foray in the arena not meant for adjudication by the courts and thereby respect the division of labour, clearly demarcated by the Constitution of India?