Delivering the keynote address in the J.B. Dadachanji Debate in Delhi recently, the Attorney General of India K.K. Venugopal expressed former prime minister Jawaharlal Nehru's apprehension that the Indian Supreme Court is becoming a third chamber of Parliament. He was particularly critical of use by Supreme Court judges of loose expressions like ' Constitutional morality' and 'basic structure' for testing the validity of acts of the legislature or executive.
Indeed, it seems that of late the court has embarked on a highly unpredictable and perilous path of hyper activism which is bound to lead it to total discomfiture, as happened to the US Supreme Court in the 1930s when it was striking down the president Franklin Roosevelt's New Deal legislation using the 'substantive due process' test. The Sabarimala verdict is a glaring example.
In Government of NCT vs Union of India, a three-judge bench of the court headed by the then CJI Deepak Mishra relied on 'the spirit of the Constitution', though earlier a seven-judge bench of the court in Keshvan Madhava Menon vs State of Bombay had observed, "An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion, but a Court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view".
In other words, the court must only see the language of the Constitution, and not be guided by its 'spirit' (whatever that means).
The expression 'Constitutional morality' is particularly objectionable since it is vague and can mean anything to anyone. How can cases be decided in this manner? Different judges have different philosophies, and if it is open to each to apply his own understanding of 'Constitutional morality', there will be total anarchy in the law.
In fact, the problem had arisen much earlier. For instance, the court had held the right to life in Article 21 to mean a life of dignity, though that is not mentioned in the Constitution. The words 'dignified life' can mean anything to anyone, and this resulted in the courts creating a plethora of rights, all presumed to be included in Article 21 (see K.S. Puttaswamy vs Union of India, Joseph Shine vs Union of India etc). In the Baba Ramdev case, the Supreme Court held the right to sleep a fundamental right, and in the adultery case it held the right to sleep with anyone a fundamental right.
Similarly, the Supreme Court has held that all acts of the legislature and executive must be reasonable, and it is for the court to decide whether they are reasonable or not (vide Shayara Bano vs Union of India and Joseph Shine vs Union of India). This, in effect, gives the court veto powers on all legislation. And different judges may have different notions of what is reasonable.
Earlier, there were only two requirements for a law to be valid. (1)It must emanate from a competent legislature after following the procedure prescribed in the Constitution, (2) It must not be violative of a provision of the Constitution. But now the reasonability test has imposed a third requirement, unauthorised by the Constitution.
But that is not all. In several decisions, the court has excercised legislative powers, though the Constitution has conferred them only on Parliament or the state legislatures (or their delegates), vide Articles 245-248.
There is broad separation of powers in the Constitution, and one organ of the state must not encroach into the domain of another (vide Ram Jawaya vs State of Punjab, Asif Hameed vs State of J&K, Divisional Manager, Aravali Golf Course vs Chander Hass etc) and judges cannot legislate (vide Union of India vs Deokinandan Agarwal), but unmindful of these precedents we have witnessed a spate of legislation by the court lately.
For instance, to reduce air pollution in Delhi, the court has fixed time limit for bursting crackers during Diwali and prohibited plying of certain vehicles. With respect, these were legislative acts, and the court should only have made its recommendations to the government in this connection, instead of arrogating the power to itself. Similarly, its orders amending the SC/ST Act and section 498A IPC appear to be unwarranted.
One can understand the concern of the court on some public issues. But the court can only act as an alarm bell, not take over the functions of another organ of the state, for which it has neither the administrative or technical expertise nor the resources.
The admonition of the Attorney General is therefore timely.
Justice Markandey Katju retired from the Supreme Court in 2011. The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK.