<b>M J Antony:</b> New clouds on the judicial horizon

If disobedience can stall implementation of orders, stature of the writ courts would be diminished

While the judiciary has been facing subtle defiance from the executive in the matter of appointment of judges, a new threat has arisen on the constitutional horizon. Its social justice thrust has met with open revolt in the Jallikattu case in Tamil Nadu. Earlier, people in Kerala had organised mass killing of stray dogs that became a threat to their lives. If disobedience, encouraged by politicians, can stall implementation of orders the stature of the writ courts would be diminished with disastrous consequences.  Economic issues with political colour like sharing of Cauvery water and Sutlej-Yamuna canal, apart from socio-religious questions like women’s right to enter temples and the Uniform Civil Code might be the next in line.

So far, the government’s resistance was by stealth, like the central government making Aadhaar card compulsory for most welfare schemes against the orders of the Supreme Court. Watch how the elaborate orders on food distribution have been put in cold storage; how regulations to stop noise pollution (for example, curbs on loudspeakers specifying time, height, shape and decibels) fell on deaf ears; and how school buses trample on well-meaning decrees like carrying drinking water, fire extinguishers, first-aid boxes and provision for a tray under every seat to keep school bags.

The resistance to reforms starts much before the final orders. There are several public interest petitions raising socio-economic issues to which state governments do not file response for decades. Even lawyers do not often appear. Last week, a few such petitions were called one after another and when the states had not filed their replies for years, the court of the Chief Justice was visibly upset at the attitude of the governments. “Is it a joker court? A panchayat,” he asked.

When such stratagems fail and court orders provoke street protests, the government of the day takes the ordinance route. Legislation to outwit the courts is an old game. One of the leading cases in which the court tried to stop this practice is Madan Mohan Pathak vs Union of India (1978). A seven-judge bench of the Supreme Court quashed a law brought in to defeat its order in a labour case, observing that legislation could not usurp the role of the judiciary and citizens’ rights could not be taken away in an indirect fashion. Since then there have been several judgments on the same line; but there have also been some which were ambiguous on this question. Governments, which claim that they have the people’s mandate, have repeatedly ignored the pronouncements when faced with popular unrest or economic consequences, as in the Vodafone tax case. 

Some years ago, in its judgment in PUCL vs Union of India,  the Supreme Court declared that a voter has a right to know the antecedents of the candidates. The political class squirmed and rose against the ruling. An ordinance was passed with extreme urgency, and a law was passed with rare unanimity. That law was struck down by the court. The government faced a similar situation in the controversial “single directive” case (Vineet Narain vs Union of India), which required prior permission of the government to start an investigation against top bureaucrats.

When the Karnataka government tried to neutralise the impact of the judgment in the Cauvery Water Disputes Tribunal case in 1993, the Supreme Court set aside the law, observing: “The object of the Act was in effect to take away the force of the judgment. Such an act of the legislature amounts to exercising judicial power of the state and to functioning as an appellate court or tribunal.” In another case, P Sambamurthy vs State of AP, the court said that if the power of judicial review can be set at naught by the state government by overriding the decisions given against it, “it would sound the death knell of the rule of law”.

The bullfight case carries some lessons for animal lovers, too. They should not stretch the power of judiciary till situations like the present one arise. One might wonder why they embrace larger animals like bulls and dogs, while they ignore smaller animals like chicken and silkworms — the latter suffering horrendous death to drape our leaders and ladies. The judiciary on its part should not thrust socio-religious reforms from above when society is not ready for it. It has no machinery to enforce its orders. At the other end, there is a danger of politicians, piqued by inconvenient orders, trying to hire a crowd.