Respect The Fine Line
   Date :09-Jan-2025

distinct view
 
By Rahul Dixit :
 
There have been occasions when the executive shied away from controversial decisions and left it to the Supreme Court. In many such cases, hiding behind the judiciary forced the apex court to expand its territory as the legislators and executive were not ready to bite the bullet. Those were the moments which hastened the clouding of the line between authority of the two arms.
 
AS THE country witnesses a new political climate and confronts newer socio-economic issues, the thin line establishing the authority of legislature, executive and the judiciary is again getting blurred. All the three arms of a healthy democracy are now searching their briefs to assert authority, creating a situation of constant slugfest. The sparring match between legislature and judiciary has become a norm even as the common man grapples with an eternal confusion. In this light, the stinging observation made by eminent jurist Adv Harish Salve on the Supreme Court “not being a moral guardian of the country” brings a fine clarity on the position of the apex court. At the same time, it also sheds light on the failure of the legislative arm to assert its authority, sometimes out of reluctance and sometimes out of rigidity, allowing the judiciary to tip-toe into domains reserved for the government. This has led to a series of episodes of flagrant judicial activism and judicial overreach triggering further flashpoints between legislature and judiciary.
 
Yet, the fact remains that the courts are the facilitators of smooth implementation of laws, in its evolving nature, and the elected representatives hold the right to legislate. This difference, according to Adv Salve, is often forgotten by the judiciary due to the misplaced notion about its position. What the iconic jurist seeks to convey needs a deeper look as it concerns correcting many presumptions about the apex court and the constitutional framework set for the most respected arm of democracy. There is no denying the fact that the overwhelming number of petitions in various courts on even trifle matters has led to a thinking among the masses that the Supreme Court holds the right to override the legislature and executive. It is a wrong impression that is getting bolstered each day due to the overarching nature of observations and judgments delivered by the courts.
 
Adv Salve’s chagrin reflects the flaws in societal thinking and also inaction of the executive which has created a larger-than-life image for the apex court. Things turn fragile in such circumstances as people’s expectations from the judiciary shoot through the roof without understanding the fact that petitions are a product of a system which ultimately determines the strength or weakness of a case presented to the courts. That is why many judgments cause a lot of public disappointment because the public does not understand that the Supreme Court does not run the country. To put it in Adv Salve’s blunt and logical words, “The Supreme Court is not the moral guardian of Indians. Let's be very clear about that.”
 
One pertinent point to ponder in the observation is the ceding of ground on many occasions by the executive. There have been occasions when the executive shied away from controversial decisions and left it to the top court. In many such cases, hiding behind the judiciary forced the Supreme Court to expand its territory as the legislators and executive were not ready to bite the bullet. Those were the moments which hastened the clouding of the line between authority of the two arms. With a smudged distinction, there is often a temptation for the judiciary to exceed its brief resulting in an overreach and subsequent outcry by the legislature. India’s legal history is full of occasions where either the legislative chose to shut its eyes or the judiciary bestowed itself a right to intrude into government’s actions. Two prime examples of how the government shirked from its duty and how the Supreme Court voluntarily took matters in its own hands without its brief should sum up the dilemma. In 1992, when the Kar Sevaks gathered around the disputed structure in Ayodhya to pull it down, the court had asked the government about its plans. At that time the Attorney General had said that the forces were waiting for the Lordship’s order. It was a clear case of lobbing the ball into the judiciary’s court.
 
The second example illustrates how judicial activism metamorphosed into a correctional jurisdiction for the superior courts. In 1993, during a military operation in Hazratbal in Kashmir to rescue hostages taken by terrorists the Army had to strategically restrict their food supplies. However, a court of law assumed the role of the “moral guardian” and ruled that 1,200 calorific value should be supplied to hostages. The verdict effectively affected the course of operation. Not that the SC is adamant on wielding its powers over the executive and legislature. There is always an effort to find a delicate balance between all arms while respecting the domains of the institution. It is evident from the fine judgment in the Dr Jaya Thakur Vs Union of India case of 2022 where the petitioner had challenged the right of the Parliament to extend the tenure of then Director of Enforcement Directorate Sanjay Kumar Mishra. The judgment upheld the sanctity of the Parliament and the rights it has been bestowed by the Statute which cannot be declared unconstitutional lightly. The Bench’s observation that “The challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted” respected the rights of the elected representatives. It was honouring the fine line between the powers granted to the legislature and judiciary. Instead of indulging in a game of one-upmanship, both the legislature and judiciary can easily revisit the fine line of authority and guard their own domains with dignity and clarity leaving no confusion for the common Indian who still has faith in the judge, if not the system.n