Judicial underreach and the Supreme Court's flaming sword

Our Constitution is the repository of the sacrosanct Fundamental Rights and the Judiciary is the sentinel of this structure. In a parliamentary democracy, the Judiciary has kept any stench of majoritarian instincts of any sort under surveillance.

Recently, the Supreme Court in the case of Foundation for Media Professionals abdicated itself of the responsibility of guarding the Fundamental Rights by merely throwing the ball in the court of the government. A new facet of the ‘not us’ adjournment has been conceived, which is not restricted to this single incident.

With an unprecedented and an unplanned series of lockdowns, this government has failed as an Executive. The Court dismissed the concerns brought before it with phrases like “how can we stop the migrants from walking?”, “it was not possible for the Court to monitor who is walking and who is not walking” and “states are providing interstate transport".

This approach adopted by the Apex Court paints a disheartening image of the status quo of our ‘democracy’.

The series of lockdowns has forced the country to resort to the virtual world. With e-learning and e-courts prevailing during the present times, the only ‘e’ that the government manages to bag home is the one in their report card for handling of this pandemic.

It is an accepted principle that the Legislature and the Executive are much better versed with the needs of the people at the ground level and that the Judiciary shall not interfere in the functions of the other two organs. But, the present situation conceives a must answer question: What if the other two organs fail to perform their Constitutional obligations? This is the sole reason why the founding fathers were repelled by the idea of absolute separation of powers. This is the reason why Article 142 was proudly and neatly placed in the holy document.

Article 142 hands over to the Supreme Court the power to “pass such decree or make such order as is necessary for doing complete justice.” As has been correctly pointed out by Justice Vivian Bose with regard to Article 142,

“We have upon us the whole armor of the Constitution and walk henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration.”

The flaming sword that Justice Vivian Bose contemplates is Article 142 of the Constitution. The power to do complete justice has been solely conferred on the Supreme Court alone, so that when the course of enacted legislations diverts, the power is vested upon it to pass any such order to do complete justice.

The Supreme Court itself in the landmark case of SP Gupta had observed,

“The judiciary has therefore a socio economic destination and a creative function. It has to use the words of Glanville Austin, to become an arm of the socio-economic justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice."

In the celebrated case of Vishaka v. State of Rajasthan, the Supreme Court stepped into the shoes of the Legislature, stating that in a situation where vacuum in law is detrimental to the Fundamental Rights, the Court can issue guidelines to fill the legislative vacuum. Article 38(1) of the Constitution mandates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all institutions of national life”.

The present distressed times are not only prima facie violative of the Fundamental Rights of the down-trodden, and the ones whose purses aren’t as heavy, but it is also a blatant mockery of the intentions of the founding fathers. The Directive Principles, although not enforceable, are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws.

It is conceded that the doctrine of separation of powers is essential for a democracy to thrive, but simultaneously it is also necessary for justice to prevail. Justice that does not discriminate. The current pandemic has not only resulted in a lockdown of the country, but the Fundamental Rights also seem to have been suspended.

Although the Supreme Court has restricted the use of its ‘flaming sword’ for dire needs, there have been instances where it hasn’t failed to unleash it. The cases of Vishakha, B Sunitha and many others are examples of the same.

The present situation demands the Judiciary to unleash its sword of complete justice to hold the Executive accountable for its actions. It should not be fooled by the Executive’s so created feudal emergency and should not recreate ADM Jabalpur, where justice had reached its lowest point when the Supreme Court accepted the suspension of the most important Fundamental Right of liberty during a self-proclaimed Emergency.

It is inevitable that the Supreme Court, while exercising its power to do complete justice, might encroach upon the territories of the other two organs and terms like ‘judicial governance’, ‘judicial overreach’ might come up. But it has to be understood that ‘judicial overreach’ is a direct consequence of ‘executive or legislative underreach’.

The Executive and the Legislature have completely failed in their duties, there has been a mockery of the Fundamental Rights. Its high time to rectify the wrongs, and for times like these, the founding fathers had handed over the flaming sword - disguised in the form of Article 142 - to the Apex Court to do complete justice. It is therefore pertinent that the Judiciary clean the rust from this flaming sword to further the rights of its very own people as well as the intention of the founding fathers.

The author is a student at ILS Law College, Pune.