When the Supreme Court was established in 1950, there were eight judges, who sat as one “bench” and decided comparatively few cases. Old timers say the list of cases was published in local newspapers like the engagement columns. Now there are 31 judges sitting in 14 court rooms. The list of cases on a given day runs to more than a hundred pages. This is indeed an unwieldy situation. But what is more worrisome is that there is no uniformity in the viewpoints expressed by different benches and the institution is more unpredictable than ever on some crucial matters.
How far can the court step into matters that are perceived as belonging to the executive? There are discordant notes from different court rooms. For instance, there was continuous monitoring for years and detailed directions from one bench on how to distribute surplus foodgrains rotting in government godowns. The food minister was obliged to state last week that it was not possible to implement the court’s directions.
In a batch of cases started by lawyer M C Mehta, hundreds of orders have been passed, like introducing CNG in Delhi’s public transport, drawing bus lanes on the Capital’s roads, and even going into the minutiae of administration. The “green” or “forest” bench has stopped tree felling in the eastern hills, shut down saw mills in the vicinity of forests, and took on the Kudremukh mines, Vedanta and Posco. Two forest benches are even deciding legal issues and monitoring the implementation of the earlier orders.
There are, however, repeated dissonant voices from some other benches. Some of the views are expressed in judgments, and the more strident ones are “observations” that are reported only in the news columns. During the hearing of a case in which a firm from Bihar sought the implementation of a 1996 judgment that had constituted a monitoring panel to revive a dead paper mill, one set of judges remarked: “Judges must understand their limits. I am against outsourcing of judicial work. What is a monitoring committee? Is it the function of the judiciary?” The court said, “Badshahat nahi hai ki jo marji me aaya wo kar de (This is not a monarchy in which judges would do as they want).”
In a case of inter-country adoption, for which the Supreme Court laid down the rules in 1984 since there was no law, one bench said the court was not an “interim Parliament” to make laws. “If there is no legislation, the court starts making laws. Judges must do their job and should not make laws. I will raise my voice against this and will keep on raising it,” a judge said. Presumably, this objection will cover many other directions given by the court. It had passed a set of rules, in the form of a legislation, in the Visakha case to protect women from sexual harassment in the workplace. In the Vineet Narain case, the court passed a series of directions to tackle political corruption that even led to the establishment of the Central Vigilance Commission .
The hawkers in Mumbai and Delhi moved the court more than two decades ago, asserting their right to livelihood. The court has been examining various schemes to accommodate them in the cities in a manner that causes citizens the least nuisance. But last week, one bench developed self-doubts and said in the open court that it was “exhausted” by the case. The judges told the Delhi civic authorities that “your entire system is rotten; courts cannot solve the problem”. The judges pointed out that even the high-security area around India Gate is a mess; so many hawkers stand there and it becomes impossible for pedestrians to walk; it is the filthiest place in the morning.
In another case seeking the implementation of the government sanitation scheme, one bench observed that “we are not here to set up public toilets”. In a case relating to the pitiable conditions of tea garden workers, the judges said, “We are not going to govern the country from here.”
When the public interest litigation (PIL) movement was launched by the judiciary in the 1980s, some judges strongly opposed the departure from the traditional role of the courts. Post cards from jails were treated as writ petitions, and a letter to the editor regarding the abominable conditions in the Agra resettlement home for rescued women was turned into a PIL. One sitting judge attacked the orders in public, sardonically remarking that it would seem that the home was being run by the court.
A bench later raised questions about the conduct of PILs by other benches and referred them to a larger bench. A decade later, the court did not deem it necessary to answer the questions, because the PIL movement had progressed so far that the doubts seemed irrelevant and dated. Moreover, most of the questions had been answered in other judgments by the architects of the PIL movement. Now the same doubts are being raised and it is time the Supreme Court made up its mind and spoke in a clear tenor.
