Lutyens’ Delhi makes for a wonderful Physics laboratory, especially if one were to experiment magnetism. The trio of North Block, South Block and the Rashtrapati Bhavan take the shape of an awkward horseshoe magnet. Perhaps the striking similarity was not lost on its principal architects, Edwin Lutyens and Herbert Baker.
Probably wary of the magnetism of this executive nerve-centre, the Supreme Court shifted its premises from the Chamber of Princes in the Parliament to its current location near Mandi House in New Delhi. The physical lack of contiguity underscores judicial autonomy, its seat independent, and unblemished from the blunderbuss of bureaucracy.
As judges came and judges went, however, the Court acquired an aura of infallibility(save ADM Jabalpur), its standing levitated and its pronouncements came to be considered denouements. Not without a sense of irony, an organism of unelected intellectuals came to be trusted to a higher degree by the citizens, whose faith in their own elected legislators plummeted.
The Third Chamber
This brings us to the Parliament. The judiciary’s rise came at a cost, which was parliamentary disgust. Though constitutionally sound, the spectre of an unelected body sitting on judgement on the constitutionality of legislation troubled parliamentarians, not the least Jawaharlal Nehru, who sounded the cautionary bugle through the Ninth Schedule – creating a repository of laws immune to judicial validation – in particular, and the First Amendment – which overturned quite a few judgements of the Courts – in general.
Subject to a brief interlude of Indira Gandhi’s “committed judiciary”, the Court made a spectacular comeback, with a bevvy of judgements, including Keshavananda Bharati, Maneka Gandhi, Minerva Mills, among others. This was aided by the Court’s blue-eyed branch of litigation, the PIL, which brought the Supreme Court to the front pages of newspapers. One cannot reflect on these developments without turning to its attendant costs. And the cost is, as many commentators point out, the rise of the Supreme Court as the ‘third chamber of the Parliament’.
Why is this so? Unlike litigation, where the Court leans on one side in its judgement, legislation making tends to be more of arbitration, consensus-seeking, and opinion-making, rather than barging through with a brute majority. Unfortunate political development and uneven political alliances led to finer red lines between the Treasury and the Opposition benches, with absolute majority eliminating the need for consensus. This begins to produce clear winners and clear losers. The losers, before licking their wounds, are given one opportune chance for victory. A validation, a nod (or a series of nods), an agreement that can bring to its knees any savage majority, and assist any microscopic minority – The Supreme Court.
Thus begins a theoretically appreciable but practically mind-boggling exercise. Albeit the Supreme Court stays on standby year – long and unlike Parliament functions around the calendar, the journey of legislation takes a long diversion into the bosom of the judiciary, with its attendant factorials – arguments, transfer to Constitution Benches, adjournments, recusals, judgements, reviews, curatives and so forth – delaying the application of legislation. Notwithstanding the inherent constitutionality or the unconstitutionality of a piece of law, its implementation is invariably hinged to its prospects of passing the judicial test. What is more troubling, is the prospect of the judiciary nullifying the National Judicial Accountability Commission Act, (2015), stalling changes in its own structure.
Jurisdiction and Justice
The Constitution accords the Supreme Court jurisdiction over the following: original (inter-state or Centre-state disputes, disputes on the election of President/Vice-President; among others); appellate (cases appealed before the Supreme Court with the sanction of the High Courts); and finally advisory (granting advice to the President on issues of constitutional importance). The surge of Public Interest litigation granted the Supreme Court another jurisdiction, which under Article 32 should be categorised under Original jurisdiction. However, let us take a detour and call it acquired jurisdiction. This is so, as the Supreme Court has consistently interpreted fundamental rights in terms of their spirit, than the letter itself. Hence, as the Court can entertain any rightly-structured PIL based on its expansive vision of fundamental rights, the litigation surrounding the PILs make a case for a separate branch of litigation altogether.
A Different Validation
Now that we have drawn fine lines of distinction between the jurisdiction of the Court and judicial validation of laws, we can now make a case for a prospective merger of the two. The one jurisdictional branch which is least in vogue – yet ironically is largely controversial – is the advisory jurisdiction. Albeit its scarce use, it opens a tinderbox every time this tool is used – if the advice so rendered is binding on the President, if the President will exercise his veto powers – and so forth.
Nonetheless, the advisory jurisdiction merits another perspective. The President is, technically speaking, a part of the Parliament. However, save a few legislations (money bills, Finance Bill, bills relating to trade, state boundaries, among others), the President is usually presented with the laws after they have been enacted. Although the President reserves the right to refer the Bills back to both the Houses, it does not eliminate the aspect of judicial review.
This is not to suggest that judicial review is despicable. Nothing can be farther from the truth. What is germane to the discussion is the delay that plagues implementation of the legislation. Seemingly, this contributes to the ever-churning cause of “implementation gap” that is regurgitated ad nauseam when commentators are asked of the undercurrents of our failure. A sustained accommodation of the judiciary into the process of lawmaking is the way forward. Currently, legislative standards of conformity with the Constitution are evaluated by the Ministry of Law and Justice. It would be this messenger, which holds the key to unburden the Court and underscore justice.
There is little logic in reticence from dialogue with the lawmakers. If the horseshoe exerts a magnetic pull, it has to be one for sustained consultation and delegated legislation, not one of infringement in each other’s working, or doubting one another’s wisdom.
By S. Aditya shanmukhaaditya2001@gmail.com
The featured image first appeared in The Hindu on 27 January 2020.