“The toad beneath the harrow knows

Exactly where each tooth-point goes;

The butterfly upon the road

Preaches contentment to that toad.”

- Rudyard Kipling: Paget M.P.

It was with a sense of alarm that I read Mr. Harish Salve’s “crie de ‘cour” entitled “Rise and Fall of the PIL”, in the TOI of June 5, 2020, not only because of the unjustified and vituperative attack on those whose political views are not the same as his, but because I find Mr. Salve’s doctrine of “Judicial Review,” and his battle cry of “discretion” astonishing to say the least. I believe it is borne of his desire to rationalize and justify the numerous instances of the grave abdication of its judicial powers and functions by the Supreme Court in the past year and more.

In innumerable cases, the petitions brought before the Court cried out for it to promptly intervene, and to exercise the vast powers conferred upon it by our Constitution, in order to do justice to those who needed it the most—the poor and the oppressed. And it is precisely because the starving and dying migrants, or those oppressed in J&K, or activists and journalists imprisoned on trumped up charges by an overbearing State, were not able to approach the Court themselves, for reasons that all, except Mr. Salve, could see that the gross violation of their fundamental rights had to be taken up by others in PILs.

This abject failure of the Supreme Court has been the subject of comment and criticism by the press, electronic media, social media, activists, NGOs, lawyers and a few brave retired judges of the Supreme Court and High Courts. Mr. Salve doesn’t seem to like this, perhaps because this dissatisfaction with the Court in the migrants case, finally bore fruit, with the Court belatedly passing orders against the Executive, regarding the plight of the migrants. This might explain Mr. Salve’s attempted sarcasm and intemperate language suggesting these persons and groups seek the “enforcement of pseudo-constitutional rights.” It also explains the carte blanche which he repeatedly gives to the “elected executive.” Mr. Salve’s political and legal philosophy, which he enthusiastically advocates for the Courts to adopt, is one of unbridled and unfettered power to the executive to do as it pleases. In fact, he praises the recent approach of the Supreme Court, in putting it’s faith in the executive, whilst the rights and lives of citizens are trampled on and flagrantly violated. Echoes of the “Rise of the Third Reich”! But that wouldn’t disturb Mr. Salve.

Not surprisingly, exalting the elected executive is Mr. Salve’s theme song throughout his diatribe against “Left leaning economic philosophies”. Mr. Salve, who sanctimoniously declaims that motives should not be ascribed to judges and judgments, and that their intellectual integrity must never be questioned, promptly and conveniently goes on to ascribe motives and intellectual dishonesty to those whom he attacks. Rejoicing in the “course correction” regarding PILs, he attacks those in favour of PILs in these words: “This course correction by the court has unsurprisingly upset those who had gotten used to using the judicial system to dictate their philosophy to the elected executive. In their arrogance, they perceive any court which does not toe their line as being subservient to the executive. Judges are maligned as a warning to those who follow.”

It is also unclear as to how Mr. Salve has divined a “course correction” in the Supreme Court’s approach to PILs post-2014, for the Court has developed no identifiable jurisprudence on judicial restraint in PIL matters; what can be discerned is a judicial temperament for entertaining PIL ‘causes’ regarding standing to the national anthem at cinema halls and changing the country’s name to Bharat, to mention two of the most glaring examples. And it is precisely because of these choices made by the Courts that the judiciary cannot be shielded from criticism for its choices and the resultant implications. That the most trenchant criticism in recent times has been reserved for PILs relating to the rights of millions of starving migrants, instead of far more dubious causes raised in PIL, is a damning reflection on Mr. Salve and those who share his views.

Mr. Salve’s “tour de force” however is his “Doctrine of Judicial Review”, and the exercise of discretion in that regard. “A constitutional court is always making choices of what causes it takes on. That is the power of judicial review which is rooted in the court’s discretion.” If a law student had answered the question “What is judicial review under our Constitution?” in terms of what should now be called the “Salve Doctrine” the student would have failed the exam. Does Mr. Salve genuinely believe that his doctrine can survive scrutiny? Despite Article 32 of Constitution, entitled “Remedies for Enforcement of Rights conferred by this Part” (i.e. Part III, dealing with Fundamental Rights) itself being a fundamental Right?

Mr. Salve of all persons does not need to be reminded of what Arts. 32(1) and (2) state:

“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Art. 32(1)

“The Supreme Court shall have the power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any right conferred by this Part.” Art. 32(2)

Never mind that speaking of Article 32 (draft Article 25) in the Constituent Assembly, Dr. Ambedkar described it as the very soul of the Constitution because it provided effective remedies against the violation of fundamental rights—remedies which no legislature could take away. (see Constituent Assembly Debates Vol. VII, p.953.) These ancient writs were mentioned by name in Article 32, because said Dr. Ambedkar: “These writs have been in existence in Great Britain for a number of years. Their nature and the remedies they provided are known to every lawyer and consequently we thought that as it is impossible for a man who has a most fertile imagination to invent something new, it was hardly possible to improve upon the writs which have been in existence probably for thousands (hundreds?) of years and which have given complete satisfaction to every Englishman with regard to the protection of his freedom… and which….have been found to be knave-proof and fool-proof…..” (C.A.D Vol.VII p.952.) (Quoted in H. M. Seervai, Constitutional Law of India vol.2 pg.1451, 4^th Edition.)

Never mind that Article 226 confers on the High Courts similar powers to issue appropriate writs for the enforcement of fundamental rights, and “for any other purpose”. And, Art.13, shortly stated, declares laws violating fundamental rights, void; and prohibits the State, post the Constitution, from enacting a law which takes away or abridges the rights conferred by Part III. And we are told that judicial review goes to the Court choosing which matters to hear. If this were so, we would have to hang our heads in shame.

Little did Dr. Ambedkar dream that the knave-proof and fool-proof protection of our fundamental rights, which was envisaged to be through enforcement by the Supreme Court and the High Courts, would not be proof to Mr. Salve’s doctrine of Judicial Review. Hopefully this too shall pass. To quote a very great man’s words, spoken at a different, but no less dangerous time: “Fondly do we hope—fervently do we pray---”

Mr. Salve ends his article by attacking the few brave retired judges who have denounced the recent workings of the Supreme Court, and by praising Tushar Mehta. “Solicitor General Tushar Mehta , in a trenchant criticism of some who have been filing PILs, raised the issue of how the institution must address this situation caused by ceaseless irresponsible criticism.” Need more be said? Quintin Hogg’s words quoted by Salve are never more apt than when directed to him:

Regrettably, for the legal fraternity, and for the citizens of this country, he chose not to exercise that option.

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Navroz Seervai is a Senior Advocate based in Mumbai. Read our 2016 interview here.

Disclaimer: The views and opinions expressed in this article are of the author's and do not necessarily reflect those of Bar & Bench.