India’s top court cannot be seen to be helpless when faced with issues of individual liberty. ‘In certain rare situations, the judiciary could still act as a determined umpire who checks the executive’s excesses.
GS Paper 2: Separation of powers between various organs, functioning of the Executive and the Judiciary.
The functional overlap of government organs undermines the principle of separation of powers. Comment (150 words)
Challenges before judiciary
- Because of its broad judicial review power, the Supreme Court of India is widely regarded as the world’s most powerful top court.
- Article 32 of the Constitution grants it the authority to issue writs.
- Under Article 131 of the Constitution, it also has original jurisdiction.
- Articles 132, 133, 134, and 136 of the Constitution provide for extensive appellate power.
- More importantly, according to Article 142 of the Constitution, the Supreme Court has the authority to “make such order as is necessary for doing complete justice in any cause or matter pending before it.”
- Nonetheless, the Supreme Court has repeatedly demonstrated that it is powerless when it comes to issues of individual liberty.
- Many political prisoners are still imprisoned after their bail applications were repeatedly denied by various courts.
- The executive can register multiple FIRs in different states of India to ensure that the dissident is not released from prison, even if bail is granted in some cases. As a result, the executive’s jail jurisprudence effectively outweighs the Court’s bail jurisdiction.
The Conventional weakness
- If the Supreme Court truly wants to address this situation in which an aggrandizing executive hunts its opponents in a systematic and incremental manner, it cannot afford to be conventional.
- According to conventional legal wisdom, every criminal case is a case that must be dealt with as such and pursued to its logical conclusion.
- Multiple FIR registration is a highly problematic practise.
- Professor Vincent Blasi, an American legal scholar, identifies “historical periods when intolerance of unorthodox ideas is most prevalent and governments are most able and most likely to stifle dissent systematically” in the context of free speech. India’s situation is instructive.
Rule by law
- In such difficult times, the criminal justice system degenerates into rule by law, which replaces rule of law.
- The law becomes an effective tool in the hands of the government for the purposes of a witch-hunt, and it works against regime opponents as a class.
- In this scenario, if the Court incorrectly assumes that the nation’s legal system is governed by the rule of law, fallacies and unjust consequences are unavoidable.
- In such a legal environment, it will be equally erroneous to treat each case as if it were isolated, which it is not.
- Climate change is a hard reality that no court can ignore in a nation’s constitutionalism.
- Even in difficult times, a constitutional court should be able to develop its own mechanism to protect the country’s democratic foundation by intervening in the gradual process of “deconstitutionalization.”
- In a recent study, law professor Rosalind Dixon stated that “at least under certain conditions — of sufficient independence, political support, and remedial power — courts can too play an important role in buttressing democratic processes and commitments,” and that this is “the essence of responsive judicial review.”
- Colombian and Brazilian constitutional courts have developed the new doctrine of “unconstitutional state of affairs.”
- This allows the court to address structural deficiencies with realism and to issue effective orders even when deviating from procedural rigour in order to protect fundamental rights.
- This is similar to the practise of Public Interest Litigation (PIL) in India and structural injunctions in the United States in some ways.
Creating a judicial atmosphere
- Without a doubt, the courts may occasionally serve the executive’s interests.
- As has happened in some cases, this may even pose a serious threat to personal liberty.
- However, in rare cases, it may still act as a determined umpire who checks the executive’s excesses.
- This point is illustrated by the Supreme Court’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus incident.
- The latter approach must be expanded in order to create and sustain a democratic judicial environment that supports the cause of liberty.
- In principle, the Indian Supreme Court is constitutionally empowered to invoke its jurisdiction for the greater cause of liberty, even if it means deviating from the conventional technical route.
- The phrase “complete justice” in Article 142 is intended to be used when legalistic arguments undermine the goal of constitutional justice.
- The Court requires a new version of judicial activism, which it developed in the 1980s.
The Idea of Complete justice
- The origins of Article 142 demonstrate that the framers of the Constitution consciously incorporated this provision by significantly altering the earlier corresponding provision in the Government of India Act, 1935.
- Section 210(2) of the Government of India Act only mentioned the enforceability of Federal Court orders.
- It did not, of course, include a concept of complete justice in the constitutional sense. Article 142, on the other hand, gives the Supreme Court this supplemental authority.
- The interpretation of this provision’s scope has been varied, and at times contradictory.
- Some decisions argued for its restrictive use, while others argued for its liberal and contextual application. The Supreme Court stated in Delhi Development Authority vs Skipper Construction Company (1996) that the power under Article 142 should be “undefined and uncatalogued, so that it remains elastic enough to be moulded to suit the given situation.”
The way forward
- It is critical that the Supreme Court of India treat political prisoners and dissenters who are facing multiple FIRs and are being held indefinitely as a class.
- It requires normative jurisprudence to address the technical arguments that create a false notion of rule of law when the very cause of arrest and detention is a lack of it.
- When a blatant instance of restricting a person’s freedom is brought before the highest court, it should be capable of ordering the records pertaining to the multiple FIRs and adding all stakeholders as parties (if necessary); the Court should immediately ensure that vindictive incarceration does not continue for even a day.
- This may be difficult, but it is not impossible. As a result, it is critical to develop an effective jurisprudence of “complete justice” that focuses on personal liberty.
- The application of this new judicial tool may be able to preserve the country’s democratic legacy.