Judicial Overreach: When Supreme Court Crosses The Line

Judicial Overreach: When Supreme Court Crosses The Line

by Tushar Gupta - Sunday, March 5, 2023 09:29 AM IST
Judicial Overreach: When Supreme Court Crosses The Line Where does one draw the line for the Supreme Court of India, or can such a line even exist?
  • For the average citizen of India, beyond the judgements, the optics also matter, and that is where the apex court has faltered. 

    The episode of the CJI versus the legislature on the appointment of the CEC is not the last time when judicial overreach will be witnessed.

The recent ruling by the apex court, concerning the appointment of the Chief Election Commissioner, resulted in a backlash from the electorate on social media.

Many cited the idea of separation of powers, envisioned in the constitution, and how the Supreme Court, in the garb of pursuing neutrality within the election commission, was interfering in the jurisdiction of the elected representatives.

However, this was not the first, or even the last time, that the apex court indulged in judicial activism. 

Giving A Long Rope To The Farmers At Singhu 

One of the recent absurdities was the apex court lambasting the government for the farmers’ protests, even when many senior ministers, visiting Punjab, had tried to reason with them.

The apex court stayed the implementation of the laws, factoring the protests from the farmers of only one state and ignoring the successes of the private sector in more than 90 per cent of the agricultural output of this country.

Furthermore, the court ignored the blocking of railway tracks and tolls in Punjab, and one of the most critical national highways going north from Delhi. 

The observations made by the justices were also concerning. The then Chief Justice of India (CJI) told the Solicitor General that they received no petition stating that the farm laws were good.

Though the end result was a committee that the farmers themselves rejected, the apex court, in its observations, cited protesters suffering in the cold and stated that the laws were not ushered in after enough consultation.

No word on the businesses losing money due to the protests, inconvenience to routine travelers. Selective commentary. 

Selective Inaction Before The Infamous Republic Day Tractor Parade 

While conveniently staying the implementation of the laws, the then CJI had remarked that the courts cannot decide who can and cannot enter Delhi.

While the latter observation was correct, it was the selective inaction before 26 January that was partially responsible for the arsoning that happened around the Red Fort.

Less than a week before Republic Day, the court ignored the security concerns pertaining to 5,000 tractors entering Delhi, raised through an application filed by the Delhi Police. The apex court, ironically, was worried about not having the authority

The court, by virtue of getting involved in the protests, should have sensed the threat that the national capital faced on 25-26 January. Not to use the benefit of hindsight, but a direct threat from some farmers’ groups was visible, courtesy of the media coverage.

Even the human resources in law and enforcement meant for securing the city on perhaps the most highly secured days of the year, had to be squandered on these protesters, an aspect the court ignored.

Eventually, what followed was a result of the selective inaction of the courts. 

This Lady Is Single Handedly Responsible For What Is Happening In The Country 

Perhaps the most severe online backlash, in recent years, against an observation of the apex court came during the hearing where a former BJP spokesperson requested that the FIRs against her, for her comments on one of the news debates on the issue of Gyanvapi, be clubbed.

The apex court, ignoring the insulting remarks being made by the other side on Gyanvapi, stated that Sharma should have apologised before the nation, questioning her faith, saying her job was to only provoke. 

The court did not stop there. The entire responsibility of the violence, witnessed in a few pockets along with a gruesome murder, was pinned on Sharma.

Further, the court was quick to observe that an FIR should have been filed against the anchor of the debate too.

Eventually, the Supreme Court did agree to club all the FIRs against her, but not before they extended the courtesy to someone with completely opposite political views.

What was worrying was that the lambasting of Sharma validated all those who wanted to ‘punish’ Sharma for her utterances. 

No Liquor Stores Around The National Highways 

In December 2016, the Supreme Court issued directions, stating that no more licenses for the sale of liquor along the national and state highways, across a distance of 500 meters from the outside edge of the highway (or the service lane), could be granted.

The order was based on a petition filed by the road safety activist, without factoring in the economic and employment consequences.

In Chandigarh, for instance, where many liquor stores happen to be in the markets adjacent to the arterial roads, the highways had to be reclassified as district roads. 

The order was to be implemented from 1 April 2017. However, hoteliers and liquor store owners were already protesting against the apex court.

While the intent behind the order may have been laudable, the court’s interference in a state subject and a moral stance against one of the many individual rights was problematic.

As much as it is wrong for the state government to ban liquor, be it Gujarat or Bihar, it was wrong for the Supreme Court to ban liquor store operations in the garb of making roads safer. Economics without wisdom. 

From The Courts To The Stock Markets 

Last week, the justices had several observations to make regarding the Hindenburg report on Adani Enterprises.

To even entertain petitions around it was problematic for several reasons.

One, the court cannot get into the business of stock markets, or accurately evaluate the intentions of the short-sellers.

Two, even if investor money was at stake due to stock manipulation, that was a risk the former was willing to take. The hearing sets a precedent for the courts to interfere each time a company loses stock value in a short span. 

Three, even if the courts were concerned about the money invested by Life Insurance Corporation (LIC), how can they direct the MHA to look into while being supervised by a SC appointed committee?

While LIC did not invest in Adani alone, and had quite early on declared that its investments were largely in green, the court decided to state a review was also needed of the regulatory mechanism in the markets to protect investor money. How is it the jurisdiction of the court, one wonders. 

In the recent months, justices from the apex court have also voiced their concerns against the ideological biases of the media houses.

Ideally, the courts, or even the government for that matter, cannot dictate how a media house must function when it comes to advocacy of an ideology or political bias. 

Whatever bias or inclination a media house may have, it is a conscious choice they are making, and in doing so, appealing to the viewers who may want to tune into their news products consciously.

It’s a private transaction which does not warrant comment from the courts. The media is imperfect, yes, but that is more a subjective opinion and not a verifiable fact. 

All said and done, even in their disagreement, the citizens look up to the apex court and other judicial insitutions.

However, the urgency with which the apex court has granted hearing to some political leaders in the recent days (Manish Sisodia and Pawan Khera), while dismissing the petitions of the groups involved in ensuring justice for the Kashmiri Pandits, raises several questions when it comes to Article 14.

For the average citizen of India, beyond the judgements, the optics also matter, and that is where the apex court has faltered. 

The episode of the CJI versus the legislature on the appointment of the chief election commissioner is not the last time when judicial overreach will be witnessed.

But, it does intensify the debate that has been going on in the background for a few years now; where does one draw the line for the Supreme Court of India, or if such a line can even exist?

Tushar is a senior-sub-editor at Swarajya. He tweets at @Tushar15_
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