‘… uncertainty around policy because of SC interventions’

May 8, 2017, 2:00 AM IST Sanjiv Shankaran in Cash Flow | Edit Page, India, Q&A | TOI

Some recent Supreme Court judgments, which have had a significant impact on policy issues, have triggered a debate on its powers. AP Shah, former chief justice of Delhi high court and former law commission chairman, spoke to Sanjiv Shankaran on the issue and the apex court’s fundamental role:

Is SC’s role in co-governing India consistent with Constitution’s spirit?

In the 1980s, after the Emergency, judiciary transformed itself into an institution that was enjoined to promote the ideals of socio-economic and political justice.

Judiciary developed public interest litigation, or PILs, as a jurisdiction to transform constitutional promises into reality, and open the doors to those groups of people who were not free to approach the courts due to socio-economic factors. The idea was to make human rights meaningful for weaker sections of society. Then it gradually recognised rights of undertrials, juveniles, right to privacy, right to speedy trials and so on. It also covered areas like environment. This is how the idea of PILs began and started expanding. Article 21 was expanded as well, recognising right to education, work, shelter and so on. It was undeniably a glorious chapter in history of Indian judiciary.

Lately, however, the court has taken on a role of co-governance. Indeed, I fear that it has become the norm almost. The court, through its decisions, is virtually overriding the constitutional concept of separation of powers. There are judicial diktats on every other subject, many of which are rank populist decisions, for example, the decision in the BCCI matter, where the court is practically running the cricket board on a day to day basis. Besides this, the court also entertains completely frivolous matters like the national anthem case, or the one on Sikh jokes.

In sum, the court appears to be engaging in unrestrained judicial overreach, mostly by recourse to Article 142, and issuing judicial diktats.

Populist approach would destroy the idea of PIL as envisaged originally decades ago. SC is trying to govern the country, and trying to correct every ill that exists. But this is neither within the powers of the court, nor does it have the capacity to do so. The priority must be protection of human rights and fundamental rights.

Does the recent record suggest that evidentiary basis for judgments is satisfactory, particularly if the outcome has a significant fallout?

The alcohol ban is a case in point where the court’s decision has had catastrophic financial consequences. In effect, the court drastically altered the central government’s policy without realising the implications. I believe this is in the range of anything between Rs 50,000-75,000 crore, and has led to the loss of a million jobs. SC has missed the target on this one. There should have been decisive steps taken against drunken driving. The decision may be well intentioned, but it has effectively gone against the thriving hospitality industry.

As a result, there is also a lot of uncertainty around policy, because of the interventions of SC. Such decisions have serious financial repercussions, which, I fear, the court is not equipped to understand.

Taking a look at Aadhaar case, is SC’s scheduling of hearings contributing in a roundabout way to a roll-out of policy?

There are very serious issues involved in the petition before SC, including whether the Aadhaar Act could have been passed as a money bill.

It is useful to recap what happened. The case came before a three-judge bench in August 2015. The court granted interim relief restricting the use of Aadhaar to two schemes on a voluntary basis. When it went to a five-judge bench in October 2015, the two schemes were expanded to six schemes. On both occasions, the court said it was an important issue and should be heard expeditiously.

In spite of that observation, the matter is not being given priority. In the meantime, the central government started issuing notification upon notification making Aadhaar mandatory for various purposes, in disregard of the interim order. Surprisingly, the Chief Justice of India has made an observation that the non-mandatory nature of Aadhaar extends only to social welfare and benefit schemes, and that it did not apply to other things like verification of income tax returns or registration of mobile numbers. This is completely at odds with the interim order passed by the constitution bench.

Somewhere, priorities are getting lost, and the court is wasting its time in trying to address policy issues, which are clearly not in its domain. This becomes all the more critical when we realise that pendency in SC has crossed 60,000 cases.