Sudeep Mahajan writes: Judges are arbiters, not lawmakers

Clipped from: https://indianexpress.com/article/opinion/columns/coronavirus-second-wave-delhi-high-court-oxygen-election-commission-7399907/

Sudeep Mahajan writes: Judiciary must not encroach on functions of executive and legislature

The Supreme Court of India (File Photo)

In the wake of the coronavirus’s second wave hitting its peak, there have been some very interesting observations from the higher judiciary. On April 24, a Division Bench of the Delhi High Court observed that it will “hang any person” who tries to obstruct oxygen supplies to hospitals in Delhi. A bench of the Madras High Court said on April 27 that the Election Commission is singularly responsible for the second wave and should probably be tried on murder charges for its failure to ensure adherence to Covid-19 protocols. The Supreme Court was later constrained to call these observations “harsh and inappropriate”. The SC further emphasised that “there is need for judges of superior courts to exercise restraint”… However, the judicial quote that probably takes the cake is, when, the Delhi High court, on June 1, while directing the government to prioritise younger people over older ones when it came to administering Amphotericin-B, a drug used to treat mucormycosis, observed that the young are the “future of the country” and need to be saved, while the elderly have “lived their life”.

The question, however, is: What causes the higher judiciary, at times, to make such sweeping remarks when the role assigned to it in the Constitution makes it almost necessary that the observations from a judge, holding a court, should always be tempered with moderation, restraint, discipline and even wisdom? Is it the extraordinary hard work that the judges need to put in, in order to keep up with ever increasing piles of case files? Or is it because the higher courts have come to firmly believe that in this country, they are the ultimate arbiters and therefore every order or decision or policy of the state must get their stamp of approval, for things to move forward at all?

It has long been accepted, even by verdicts of the apex court, that the courts are not ordinarily to interfere in the policy matters of the state. In Census Commissioner & others v. R Krishnamurthi, where a high court had issued directions to achieve social justice, the Supreme Court held, “it is not within the domain of the court to Legislate… The courts have the jurisdiction to declare the law as unconstitutional… But the courts are not to plunge into policy making by adding something to policy by way of issuing a writ of mandamus. There, judicial restraint is called for.” It further added, “…refrain and restraint are the essential virtues in the arena of adjudication because they guard as sentinel”. One quote mentioned therein is from “centuries back”, by Francis Bacon: “Judges ought to be more learned than witty, more reverend than plausible and more advised than confident… Let the judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions but yet lions under the throne.”https://images.indianexpress.com/2020/08/1×1.png

Again, in Union of India v. Indian Radiological & Imaging Association, it was held that: “The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review. Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature.”

Many more such verdicts, dripping with wisdom, can be mentioned here. The question is why do courts in India often forget or neglect such pearls of wisdom? Given the global scale of the pandemic, why haven’t courts anywhere else in the world, distrusting the state, taken it upon themselves to arrange for oxygen, medicines and vaccines? Or taken to directing which section of patients should be attempted to be saved and which should be allowed to let go for having “lived their life”? These kinds of directions are beyond the jurisdiction of the courts. These are clearly the arenas that must be left for the government to govern. The assumption that everyone in the government is either corrupt or incompetent cannot always be a valid starting point of all judicial actions. The courts must never disregard that the Preamble of the Constitution unequivocally makes the “people of India” the source of all power that flows from its various provisions. It is these very people who go to polls every five years to elect their representatives to Parliament and the state legislatures. Only these representatives, empowered by an almost-sacred process of elections, are answerable and accountable to the people of India and therefore they alone have the power to enact laws and to frame policy. The people of India in turn have the right and the power to change their representatives, in the next elections, if they do not like the laws enacted and the policy framed by them. The observation of the CJI on June 30, that “the mere right to change the ruler once every few years, by itself need not be a guarantee against the tyranny of the elected” has to be taken to mean that the tyranny of the elected, whenever it takes place, is also to be curbed by the application of various laws and the rules of procedure etc. But it cannot be taken to mean that the higher judiciary is allowed to have a free run, even when it comes to formulating policy and the laws, for this is the primary purpose for which the people elect their representatives. Moreover, as some of the observations mentioned above show, this debate also raises another question: How is the tyranny of the unelected, in a powerful office, for a long haul, to be dealt with?

We all know how the pending cases are piling up, with each passing day, in all the courts in the country. Will it, therefore, not be a more useful and purposive use of the courts’ time to hear and decide the pending cases of ordinary folks, than to foray into the arena meant only for the Executive/Legislature, as per the original scheme envisioned by the framers of the Constitution?

This column first appeared in the print edition on July 12, 2021 under the title ‘Staying within the lines’. The writer is advocate, Punjab & Haryana High Court and ex-Additional Advocate General, Haryana

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