The Judicial Overreach – Facts, Issues and Prospects for Harmonious Growth of Institutions in a Democracy – Part II

The Judicial Overreach – Facts, Issues and Prospects for Harmonious Growth of Institutions in a Democracy – II


The Article 14 (Right to Equality), read with Article 19(Right to Freedom), Article 25(Freedom of Religion), Art 21 (Protection of life and personal liberty) are among the fundamental rights of citizen’s listed in the Part III of the constitution. Remedies for enforcement of these rights are judicial and embodied in Article 32 which gives the Citizen the right to move to the Supreme Court by appropriate proceedings for the enforcement of these rights is guaranteed. Under Article 32, ‘The Citizens are entitled to relief provided it is shown to the satisfaction of the Court that the fundamental rights of the citizens had been violated. The issuance writs, meaning orders by the Supreme Court or the High Courts under Article 226 is the form of such orders depending on the nature of the case. These writs are in the nature of ‘habeas corpus’, that is requiring the authority to produce a detainee, mandamus that is to compel performance of a Statutory duty of public nature when such an authority refuses to perform it, ‘quo warranto – to prevent a public office being held by a person without legal authority and Certiorari meaning demand for information that may lead to judicial review of administrative action.

Together these constitute in simple language the ‘writ jurisdiction’ of the Supreme Court and the High Courts (Note: The Courts subordinate to the High Courts do not enjoy this jurisdiction) and the scheme of Judicial Review under Article 32 and 226 of the Constitution.

Further Art 141 lays down that “the law declared by the Supreme Court shall be binding on all courts” which means law made while interpreting the statutes. . The orders might contain many observations and not all these comments would have “precedential” value, but only enunciation of law by the court on issues directly raised or arising of the application of law to a particular case expressed in Latin as ‘ratio decidendi’ which will be treated as binding precedent and hence a judge made law.

A reader may ask why such use of Latin expression? 

The answer is that for historical reasons only two systems of jurisprudence have proved outstanding for adoption, namely the ‘Civil Law of Rome’ and the ‘Common Law of England’ and often intertwined especially in matters of procedure and hence the use of Latin words. In continental Europe, Latin America and Japan and even Scotland, Roman law is followed whereas in all countries which for sometime came under the British Rule seem to have adopted the Common Law of England.

Reverting to the role of the Supreme Court, we must note that while under Art 142 the Supreme Court enjoys unfettered independent jurisdiction to pass any order in public interest to do complete justice, under Art 143the President has the power to consult Supreme Court “on a question of Law or Fact” which is of such ‘Public Interest’ that the President feels it expedient to obtain the opinion of the Supreme Court and on receiving such a Presidential reference, “ the Supreme Court may after such hearings as it thinks fit , report to the President its opinion thereon”. Art 144 lays down all authorities, Civil and Judicial shall act in aid of the Supreme Court.

From this position it is clear that the Courts have a Constitutional mandate to define, preserve and protect public interest. The instrument of Public Interest Litigation (PIL), an important feature of Indian democracy owes its origin to the writ jurisdiction of the Courts. Thus the Supreme Court interpreted the Right to Life to include ‘the right to clear air and safe water’.  Thus the Supreme Court has defined PIL as a proceeding in which an individual or a group seeks relief in the interest of general public and not for its own purpose. (SP Gupta Vs Union of India, AIR 192 SC 149), the implication of this important order is far reaching. The strength of democracy lies in the idea of Public Interest of the general public which depends on the degree of advancement of the society and its capacity to absorb innovative thoughts based on science and experiences all over the world. This makes public interest varied and ever expanding in its scope; as for instance concern for environment, conservation of wild life , clean air and water have been only brought within the public agenda sometime back but today ‘climate change’ has placed environment in the core of development philosophy and public interest and mass education as the foundation of human development . In India, public interest is often confused with sectional, communal or even private interest in a dynastic party system. There is thus an emergent need and role for the judiciary t protect genuine public interest and to prevent the State from being hijacked by interest inimical to progress of the society, as experienced in some of the Sub-Saharan and Latin American countries in recent past. This problem will however remain as in a democracy, ‘public interest’ is defined by the political class who may take a narrow and short term view on political consideration which could be against the real public interest. In such a situation, the role of judiciary becomes critical for survival of democracy and social and economic development. We may note that whatever little of Rule of Law is left in Pakistan today is almost entirely due to the role of its judiciary which despite the constraints imposed, often stood up for citizens rights and liberties.


While the constitutional position of the judiciary is unquestionably critical for preservation of the basic structure of the democratic polity, rule of law and rights and liberties of the citizens and hence the vast scope of judicial review. The role of higher courts as the final adjudicator of disputes involving citizens and corporate bodies often involving State and as supervisors of subordinate courts functions are nonetheless the substantive part of its work that is delivery of justice. And since the maxim, ‘justice delayed is justice denied’ holds good for all societies, a balancing act between these two roles is essential for efficient management of time, without which the delivery of justice might as well suffer and much against the public interest. The issue of huge pendency of cases in all courts estimated at over 1 crore or so in the entire country, merits close examination as the pendency is also attributed to courts directions on matters which fall within the executive domain. To cite some recent examples, a High Court has asked the government to augment the strength of the local police force, though the Court can hardly judge if the state of law and order is a result of understaffing or a mere total lack of accountability of the police force, a division bench had asked the State government the reason for granting parole to an otherwise respectable citizen who had been imprisoned for an offence overlooking the constitutional provision that parole and pardon etc is the sole prerogative of the State as the judiciary’s task is over once it sentences a person. The argument that if the executive fails, judiciary must step in is dangerous because of the difficulty in appropriately defining failure and what if judiciary fails, then who will step in – Executive?

There is at present a grave danger of judiciary collapsing under its own weight. According to the union law ministry 60,000 cases are pending in the Supreme Court, 4 million in the High Courts and 27 million in the subordinate Courts.

Addition of more judges and filling up of the existing vacancies is one of the means of dealing with the pendency and not the only one as started in a report of the Law Commission which founded that there was no correlation between the rate of disposal and the actual strength of the bench. Observers of the Indian Judicial System have been pointing out that, ‘the arrears of Civil Cases in the Apex Court itself outnumber criminal cases by a ratio of more than 4:1 and in the High Courts by 3:1’. There is thus a view that barring title suits and disputes over immovable property, other cases need not be entertained by the courts at all ‘as these could be left to’ other fora where non judges could preside,’ leaving the judiciary to concentrate on criminal and serious civil cases’. In fact the Arbitration Act 1996 which succeeded The Arbitration Act 1940 was designed to minimize judicial intervention in most of the civil cases (in line with the 1940 Act mandating a time bound disposal of civil cases) and envisages an alternative civil disputes resolution forum where it would not be mandatory to have judges or ex-judges presiding over the forum. The observers however point out that the Arbitration Act has not been able to achieve the desired object because the act brought ‘conciliation’ also within its ambit and hence conciliation process has been made subject to courts interpretation.  It may be noted that the UN prepared a model UN Law for all countries to adopt to put in place, an “alternative civil disputes resolution” on the basis of which 1996 Act was enacted but for reasons stated above, the object has not been realized and the spirit of the UN law has had no influence in the working of the system. The order of the Apex court to cause an enquiry into the affairs of the BCCI, a private entity by a former CJI could be cited as an instance of encroachment in matters of executive. Even then the problem does not lend itself to a straightforward solution even in a situation of self imposed isolation of the judiciary because very often the public find executive indifference and wilful inaction on matters of public interest when the only course left is to seek courts intervention. It is indeed a catch-22 situation in  a democracy – that is a situation in which a desired outcome is impossible to attain because of a set of inherently contradictory rules or conditions; and the only way out is to create ‘a will’ in the sense Rousseau formulated it in his “Le Contract Sociale” –  a social contract to build up strong institutions within all three wings to address public interest and public policy so as to free the judiciary of excessive burden of its ‘judicial review’ and PIL related functions to enable it to pay due attention to equally important matters of disposal of cases and delivery of justice. Keeping this broad perspective in view it will be useful to take a practical view on some recent controversies in this regard, namely over the collegiums system of appointment of judges of the Supreme Court and the High Courts, implementation of the Lokpal and Lokayukttas Act 2013, and the implications of the orders of the Supreme Court in Singur Land acquisition case in West Bengal to protect the rights of the farmers and in the Vedanta case in Orissa to preserve the rights of the indigenous people. This is attempted in the following two sections:


The current stand off between the union government and the Supreme Court is about the collegiums system in vogue under which the judges appoint judges and the President approve the same and appoint judges under Art 217 of the Constitution. The Supreme Court collegiums is headed by the CJI and 4 other senior most judges while the HC collegiums is headed by the Chief Justice and 4 other senior most judges. The collegium scrutinizes the names, prepare a list and recommend the list to the government. Note that the latter has no role in making the select list and though it could raise objections or seek clarification, but if the collegiums stick to the list the government have no option but to refer the list to the President for action under Art 217 which is reproduced below with the relevant Art 124(2) appreciation of the legal position.

The Collegium system is the outcome of ‘Judge made laws’ as no provision of the constitution provides for the same nor any act of Parliament and has its genesis in “Three” Judge Cases. Briefly stated, the first case – SP Gupta Vs UOI in 1981 held that the primacy of CJI in appointment of judges is not built in the constitution and thus the term ‘consultation’ was not ‘concurrence’ meaning in plain language that the president was not bound to go by the recommendation which tilt in favour of the executive in the matter of appointment of the judges. This judgement of the Supreme Court in the case of Advocates on record vs. the UOI (Union of India) overruled the first judgement, introduced the collegium system as it exists today, accorded primacy in the CJI as the CJI’s recommendation should normally be acted upon by the President unless there is an adverse report of IB in respect of any recommended person. The third case arose out of a reference to the Chief Justice of India made by the President KR Narayanan under article 143 of the constitution as to the meaning of the term consultation that is , if only consultation with CJI on appointment of judges would suffice or require consultation with a number of judges. On this Supreme Court laid down 9 guidelines for functioning of the coram which constitute the collegium system. Not being happy with the system the government constituted the NJAC in August 2014 by the 99th amendment to the constitution supplanting the collegium system. However in October 2015 the Supreme Court struck down the NJAC Act 2014 and restored the collegium system. In the meantime the position of vacancies in the Supreme court and the High Court have gone up to 42.7% that is 461 posts out of 1079 sanctioned posts are vacant causing further rise in the number of pending cases. The stand off continues till date as the Supreme Court reiterated the list of 43 names for appointment rejected by the government. This standoff continues as the Union Finance minister is on record stating that due to encroachment of judiciary into legislative domain, “the edifice of the Indian legislature is being destroyed”. While aforesaid view is unexceptionable, there is some truth in the point that the collegium system lacks eligibility criteria and therefore is non-transparent, and that the Executive should have some say in the matter of selection of judges. However 2015 ruling of the Supreme Court paved the way for the government an alternative in the form of a Memorandum of Procedure that the Supreme Court asked the government to prepare which is still not in place as an agreed procedure. Consequently the government has been slow in approving the names and the Supreme Court unwilling to accept the government stand, and so a crisis situation has taken place with arrears mounting.

The constitutional architecture of parliamentary democracy, one must realize is delicate and requires mature understanding of each of the three wings and their role by those who head these organs and assertion that one wing is supreme for whatever reason is bound to cause damage to this architecture and upset the balance as it happened when a state of national emergency was declared in 1975-76 following a chain of events that started with an order of the Allahabad high court setting aside election of Smt. Indira Gandhi to the Lok Sabha. The continuing standoff between the Supreme Court and the government on the issue of NJAC is thus rightly viewed by Christopher Jaffrelot, a keen India watcher as an “ill-judged conflict” and it is hurting the citizens and the litigant public specially rather deeply as they are  paying the price for delay in disposal of cases.


On 23rd November 2016, the Supreme court pulled up the Central government in the course of hearing of a petition in the nature of the PIL for not amending the Lokpal Act 2013 to recognize the leader of the single largest opposition party as leader of opposition in Parliament, for constituting the selection committee under section 4(1) of the Lokpal act which stands in the way of appointment of Lokpal even though the act was notified on 1st January 2014. The Honourable bench of the Apex Court observed the institution of Lokpal was intended to bring probity in public life, and then this institution must work. We will not allow the situation where then institution is rendered redundant. These are indeed very strong words and there is strength in the argument of the petitioner, NGO common cause, that if the government feel strongly about it could have issued an ordinance to amend the aforesaid section of the Lokpal act. The court proceeding reported in the press suggest that the Attorney General of India put forward a view that since the government have introduced the bill to make the necessary amendments, the judiciary can not issue any directions to the Parliament which the honourable court viewed unacceptable and hence the court’s anguish at executive failure expressed rather strongly. Is this a case of judicial activism, overreach or a reasoned response to a matter is a question that has been agitating the people’s mind particularly from 2011 when the movement against corruption was launched by Anna Hazare which resulted in the enactment of the Lokpal Act 2013 and it may be recalled that this law was the outcome of lengthy consultation between the movement leaders and the central government. We may also recall that the Lokpal bill was introduced first in 1968 by Mrs Indira Gandhi and since then it has been a part of anti corruption agenda. In this background, its non-implementation for over two and a half years on a mere technicality which could have been resolved by promulgating an ordinance leaves reasonable doubts about the Government’s commitment to the act and its stated objects. The Supreme Court’s view on the subject will therefore be shared by many and taken as a proper response and directive and not as an instance of judicial activism. Leaving aside this observation of the Supreme Court, the reader may perhaps note that the entire scheme of Lokpal under the Lokpal act as embodied chapter VI is designed to create a kind of superior oversight body to ensure probity in functioning of the highest executive office and all other public servants associated with the Central Government by exercise of wide ranging powers of causing enquiry and prosecution. Lokpal therefore will really be a power structure above the government. How such a powerful oversight body will fit into the Westminster type of Parliamentary democracy that India has adopted will be worth a serious study as the institution of Ombudsman from which the idea of Lokpal has been derived, exists in the Scandinavian countries but not in England- the source of our constitutionalism.


Let us now give a look at two landmark orders of the Supreme Court. First Singur land acquisition case for setting up of a Car manufacturing plant for which West Bengal Industrial development corporation acquired land for transfer it to Tata Motor on lease for the project and second acquisition of land for a bauxite aluminium project at Niyamgiri hills in Orissa by a UK based mining company Vedanta resources industries limited for which forest lands were acquired by a State PSU namely Orissa Mining corporation even when all 12 gram sabhas of the area exercised their power under the Forests Rights Act 2006 to pass resolution rejecting the proposed land acquisition. The similarities of these two cased are remarkable as both relate exercise of power by the state of what is called in law “eminent domain” that is power of the sovereign state to take private property for public use/ public purpose.

In Singur case the Supreme court noted a serious infirmity and procedural irregularity in not following a somewhat lengthy procedure under the Land Acquisition Act, 1894 prescribed for acquisition of land for companies for projects to serve a public purpose which could include industrial unit such as the Tata project to manufacture ‘Nano’ cars in Singur as it would generate employment, income etc. Here instead of aforesaid procedure, the state invoked the emergency clause for acquisition which can only be invoked in the situation caused by emergencies like earthquakes, flash floods or to meet defence needs which didn’t apply to Singur case and more so because land was to be acquired by the State Industrial Development Corporation. The court also noted that the mandatory enquiry into the objections filed by the affected farmers was not conducted by the Collector who ordered summary rejection presumably at the instance of the government of the West Bengal and hence a case of denial of justice and commission of procedural irregularities was established. The impugned order of acquisition was thus set aside.

In the other case – Orissa Mining Corporation Vs the Ministry of Forests and Environment, the Supreme Court set aside the order of acquisition on the following grounds. The subject land was ‘Forest land’ at Niyamgiri Hills and the tribals being ‘Traditional forest dwellers’ under the Forests Rights Act and their Gram Sabhas are well within their rights to hold that they do not want mining. Thus in its April 2013 order the Supreme Court held that the project violated the Forests Rights Act and the International convention for the protection of indigenous communities and Articles 25 and 26 of the Constitution of India.

Thus what is common in these two cases is the ‘eminent domain’ – the power of the State to acquire land which, the Court held is not absolute or unfettered and has to be tempered by the duty of the State to preserve the rights of the indigenous tribes in Odisha case and the rights to livelihoods of the farmers in Singur and the procedural rights to put across why they object to the land acquisition and its reasoned consideration by the State. These rights are inalienable and therefore the State cannot take these away in the name of development and such State actions are deemed ‘arbitrary’ and by setting aside these orders the Apex Court has established case laws to be viewed as Laws to preserve ‘public interest’. From this angle, the Dec 2, 2016 order of the Supreme Court upon hearing a batch of petitions challenging the legality of various aspects of ‘demonetisation’ order dated 8.11.2016 asking the Central Government to spell out measures taken to ease the suffering of the people arising because of shortage of cash particularly in rural areas are not instances of ‘activism’, or ‘interference’ in Executive’s domain but acting well within its constitutional mandate of protecting citizens rights which in a strictly legal sense includes such interventions as in demonetisation case or the order banning sale of firecrackers in Delhi in view of the grave air pollution posing a threat to lives of all citizens especially children. The Supreme Court has since formed a ‘Constitution bench’ to examine the question of legality of the demonetisation and raised certain objections. A Civil Service aspirant may well advised to follow this case to understand how the system of Governance actually works.


This discussion will remain incomplete unless the role of the NGT and some of its recent landmark decisions are examined for a mature appreciation of how the ‘Separation of Powers’ doctrine os actually operating in India. The NGT was established under the NGT Act 2010 enacted by the Parliament “for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto”.  NGT is thus a specialized Environment Court, structured as a tribunal because while a court is a more formal structure headed by a Judge with elaborate rules for conduct of its procedure whereas a Tribunal can include both a Court and a Administrative hearing board with Expert members with necessary knowledge and experience and emphasis on resolving a matter through a ‘straightforward approach’ to rules of enquiry and evidence without quibbling over rules and procedures. NGT is thus founded on the concept of alternative jurisprudence – a departure from a “legalistic adjudications” to a problem solving role through an interdisciplinary approach essential to deal with complex and multi-disciplinary issues of environment conservation and ecology to function as an ‘alternative dispute resolution’ mechanism. One must also note that for want of this practical approach, the National Environment Appellate Authority set up under NEAA Act 1997 was a non-starter and even a tribunal envisaged under the National Environment Tribunal Act 1997 was not even established. The constitution of NGT was therefore a bold and historic step in line with the Rio Declaration of the UN in June 1992 on Environment and Development. After establishment of the NGT, all environments related cases pending with the Supreme Court were transferred to the NGT. NGT enjoys original jurisdiction under Sec 14 of the NGT Act and is also appellate jurisdiction over its regional branches and other authorities specified under Sec 18. The Green bench of the Supreme Court retain its ‘original jurisdiction’ and appeal against the orders of the NGT shall lie with the Supreme Court under Sec 22 of the NGT Act.

There is an interesting ‘global right’ angle to this subject as over the last 3 decades, there has been a convergence of law viz human rights law and environmental rights law because the latter bundle of rights is now considered to be “enforcement of human rights within the ‘broad right to life’ that now includes right to healthy environment. It may even be stated that the concept of human rights – enshrined in the UN declaration of Human Rights  1948 and the UN Covenant on Economic, Social and Cultural Rights( 1966) and the recent UN Right to development found its conceptual integrity in the right to healthy environment, clean air and water as central to the Right to Life.