The Republic of India has a federal government, comprising of the executive, legislative and judicial branches. This structure is based on the Constitution of India. The Constitution framed a system of governance in which the powers conferred by the people are not vested in either a single person or a single institution. Therein came the principle of ‘Separation of Powers’ among the three pillars of democracy—the executive, the legislature and the judiciary.
The executive comprises the prime minister and his council of ministers (the temporary executives) and the civil servants and other officers (the permanent executives). They have the sole responsibility to ensure daily administration of the nation/state. They propose policies. Once the policies are approved they ensure that these policies are implemented in a timely and effective manner.
The legislature comprises the Parliament (Lok Sabha and Rajya Sabha). It is the policy-making body of the country where all bills proposed by the Executive get discussed, debated, amended, approved or rejected.
The judiciary is the adjudicating body which is independent of the executive and legislature. The bills proposed by the executive and the laws passed by the legislature are subject to judicial review by the Supreme Court of India. The judiciary has the power to declare a law null and void if it violates the Constitution.
However it is a matter of national shame that the very judiciary which is tasked with ensuring that the Constitution is followed, now seems to be flouting its principles on a regular basis with impunity.
Three recent judgments made by the Supreme Court of India come to mind.
In November 2016, the SC mandated that the national anthem must be played in all theatres prior to the screening of movies. Neither was the ruling well thought through, nor was it made clear as to how would this be enforced. Moviegoers were confused whether they should stand up in case the national anthem is played as part of a movie. Physically disabled members of the audience were assaulted for not standing up when the anthem was played. It took clarifications and notifications from the Ministry of Home Affairs to clear the air on this issue. The honourable SC seemed to have forgotten the fact that patriotism cannot be enforced. If at all, it does need to be enforced who will be the enforcing agency? Should the police force which is understaffed and overworked, be asked to let go of their current duties during movie times?
The second judgment was the April 2017 ban on all liquor vending outlets, including hotels and restaurants, within 500 metres of National and State Highways. If people drink and drive, accidents will happen. The source and distance of liquor purchase is not a variable that impacts the casualty rate. It will be worthwhile to monitor road accidents for the period of April 2017—March 2018 and compare it to the same period a year ago. There is a very high probability that there will not be any significant reduction in the casualty rate.
However there would be another metric that would have dropped significantly—the rate of employment. It is estimated that around 1 million jobs will get impacted in the hospitality industry due to this law. Assuming an average family size of five members, this law directly hits at the livelihood of five million people. Not only is this a silly order, it is also a clear case of judicial overreach since the prohibition of consumption of intoxicating drinks is a directive principle which is under the aegis of the elected government.
Lastly and the most dangerous example of judicial overreach has been the SC’s decision to reject the curative petition of the government and uphold its earlier direction of 8th July 2016, wherein registration of an FIR against armed forces personnel has been made mandatory for every encounter death. This includes disturbed areas where the Armed Forces Special Powers Act (AFSPA) is in place. The Army and paramilitary forces are deployed in sensitive areas due to the breakdown of civil machinery.
Apart from helping maintain order, they also serve a humanitarian role —hospitals in the Himalayan region, the Goodwill schools in Ladakh, the roads maintained by Border Roads Organisation are just a few examples. Yet, our honourable judges chose to paint the soldiers with the same brush as they would a common criminal. No soldier wants to kill his own countrymen. But if there is a threat to the country’s sovereignty, he will risk his all and fight. He will either kill or get killed. Now, with this judgement passed by the SC in its hallowed portals at New Delhi (far away from the harsh realities of Siachen and Sukma), the soldiers have no option but to either let the terrorists escape or get killed themselves.
It is indeed a sad day for the Republic of India when one of the pillars of democracy, the judiciary itself shows signs of erosion. Not only does this break the norms established by the Constitution by its acts of judicial overreach, it also harms the country’s freedom of expression, economy and security.
The enormity of the judiciary’s misplaced zeal becomes even more obvious when one considers the abysmal track record of justice dispensation in India. There are 30 million cases pending in India. Even if one assumes that a case involves only two people, it is tantamount to 60 million people waiting for justice.
Though there are millions of people waiting for justice related to criminal and civil matters—murders, rapes, criminal intimidation, property disputes, cheating—the highest court in India decides to focus its energies on when the national anthem should be sung, where liquor should not be dispensed and how soldiers should fight wars. If this is not a mockery of justice, what is?
IIM C alumnus and a corporate professional