In a democracy, there is nothing unusual about a fissure between the executive and the judiciary. There could even be a healthy discourse between the two branches. Yet, the criticism of the Supreme Court’s activist posture in the Tamil Nadu governor’s case has attained a larger dimension.
Vice President Jagdeep Dhankhar chose to remind the country about Montesquieu’s principle of the separation of powers. To drive home his point, he criticised not only the judgement, but also Article 142 of the Constitution, which enables the court to pass orders ‘for doing complete justice’. In exercise of the power, the court fixed a time limit for presidential and gubernatorial actions on bills passed by state legislatures. Being dissatisfied with this gesture, the vice president feels that the provision resembles a ‘missile’ available with the Supreme Court that could be used against ‘democratic forces’.
There is an inherent irony in labelling the ‘forces’ that torpedo the decisions of people’s representatives at states as ‘democratic’. The same irony is perpetuated when the vice president, by implication, endorses the arbitrary action or inaction of a governor. Equally fallacious is his dissatisfaction about the Supreme Court not placing the case before a Constitution bench by invoking Article 145(3).
Article 142 is an indispensable device that equips the Supreme Court to determine the impact of adjudication on the ground, in concrete terms. The court cannot resolve disputes in a vacuum, or in purely theoretical or propositional terms.
Judicial pragmatism is not alien to constitutional adjudication. A two-judge bench in the A G Perarivalan case (2022) ordered the release of a convict in the Rajiv Gandhi assassination case after incarceration of about 30 years. This was done without relegating the matter again to the president, who holds pardoning power under Article 72. The court did so on finding that much time had already lapsed over communication between constitutional functionaries. In that case, the court invoked Article 142 for releasing the convict forthwith. This was done when the Tamil Nadu governor chose to sit on the state government’s recommendation to release Perarivalan.
The Supreme Court applies Article 142 in many other cases that are neither sensitive nor of public importance. It enables the court to decide the legal issues and meet the requirements of justice. The situations that call for invocation of the provision could be innumerable.
Then there is the criticism that the Tamil Nadu case should have been referred to a Constitution bench, instead of the two-judge dealing with it. The vice president, by implication, has supported this criticism. This line of thought is unfounded for several reasons. First, there was no such request either from the petitioner’s side or from the Centre’s. The Centre was effectively represented by the attorney general, who placed all possible contentions before the bench.
Secondly, given the number of Constitution bench matters pending before the Supreme Court, the possibility for an early decision in the case is bleak. In all probability, by the time a Constitution bench decides the case, the tenure of the assembly would end, which would practically nullify the whole exercise. This would result in aborting the bills passed by the elected representatives, due to gubernatorial and judicial lethargy. Thus, the reference argument lacks practical wisdom.
Thirdly, and more importantly, the matter did not raise questions of interpretation of any substantial provisions of the Constitution. True, it warranted an interpretive exercise on Article 200 dealing with the duties of the governor and Article 201 dealing with the president’s powers on bills passed by state legislatures. The court’s interpretive exercise was, essentially, on the procedural aspects in the provision, and not on any sustentative part of the articles. Even the fixing of a time limit for high constitutional functionaries was essentially procedural. The meaning of these provisions was not a matter of serious controversy in the case.
The power of judicial review vested with constitutional courts is a basic feature of India’s Constitution. It is unalterable, even by a legislative majority. In India, a strong executive has often faced a ‘weaker’ judiciary. On the other hand, the judiciary has at times appeared stronger to a ‘weaker’ executive.
The relationship between the court and parliament or the executive has been dialectical and asymmetrical in history. It started with the Golak Nath case (1967), where the Supreme Court endorsed the court’s power to review the laws made by parliament that infringe on the citizen’s fundamental rights. In Kesavananda Bharati (1973), the court asserted against legislative majoritarianism by holding that even parliament cannot pass a law damaging the basic structure of the Constitution. Thereafter, a mighty executive under Indira Gandhi blatantly interfered with the affairs of the judiciary even in the case of elevations, transfers and postings.
During the Emergency (1975-77), the phrase ‘committed judiciary’ was synonymous with a fragile system that played a subservient role to the executive, failing to carry out its functions as the guardian of the Constitution. After the Emergency, the Supreme Court tried to assert itself as a powerful court, evolving devices like public interest litigations and social action litigations. Yet, the friction went on.
When a constitutional amendment was made for replacing the collegium system, the court stalled it by a majority judgement in 2015. The verdict aggravated the friction between the two branches, often leading to the Centre sitting on proposals for judicial appointments for months or years together. When the vice president invoked the alleged transgression of powers against the background of the Tamil Nadu judgement, it clearly lacked a formidable foundation. Given the governor’s moves, the Supreme Court was bound to act in time, upholding the rights and privileges of state legislative bodies.
Alexander Hamilton, one of the drafters of the US Constitution, famously described the judiciary as the ‘least dangerous’ branch, hinting at the more dangerous executive. When a high constitutional functionary criticises the highest court and its directives, and the text of constitutional provisions based on the idea of checks and balances, it sends an unpleasant message to our democracy. No individual is above the law under our constitutional scheme. The judgement in the Tamil Nadu case underscores this democratic principle.
(Views are personal)
(kaleeswaramraj@gmail.com)
Kaleeswaram Raj | Lawyer, Supreme Court of India