 |
|
The recent controversy surrounding the Supreme Court's intervention in the matter of pending bills with the President and Governors has ignited a fierce debate about the separation of powers and the extent of judicial authority in India. Vice President Jagdeep Dhankhar has emerged as a vocal critic of the Supreme Court's actions, particularly the setting of deadlines for the President to clear bills and the invocation of Article 142 of the Constitution. This provision, designed to ensure 'complete justice,' has been used to clear bills passed by the Tamil Nadu Assembly, even without the assent of the President or Governor, a move that Dhankhar and other critics see as a significant overreach of judicial power. The core of the issue lies in the interpretation of the roles and responsibilities of the different branches of government – the Legislature, the Executive, and the Judiciary. The Constitution delineates specific functions to each, intending to create a system of checks and balances that prevents any one branch from becoming too dominant. Critics argue that the Supreme Court's recent actions have disrupted this balance, effectively encroaching on the domain of the Executive and, in Dhankhar's words, transforming judges into lawmakers, executive officers, and even a 'super Parliament.' Article 142, in particular, has become a focal point of contention. While intended to address situations where existing laws are inadequate to deliver justice, its broad language has led to interpretations that some see as exceeding the original intent. Dhankhar has described Article 142 as 'a nuclear missile against democratic forces,' highlighting the potential for its misuse to undermine the established constitutional framework. The Supreme Court's justification for its intervention stems from concerns about the prolonged delays in the assent of bills by the President and Governors. In the case of Tamil Nadu, some bills had been pending for years, effectively preventing the state government from enacting legislation deemed necessary for its governance. The court argued that these delays were unacceptable and that it had a duty to ensure the smooth functioning of the democratic process. By setting deadlines and invoking Article 142, the court aimed to break the deadlock and hold the Executive accountable for its actions. However, this intervention has raised questions about the court's role in areas traditionally considered the purview of the Executive. The power to assent to bills is a fundamental aspect of the Executive's authority, and critics argue that the Supreme Court's attempt to regulate this power undermines the principle of separation of powers. Furthermore, the decision to clear bills without the President's assent has been described as a constitutional first, raising concerns about the legitimacy of such actions. This also opens up a Pandora's Box of questions - What happens when the President disagrees with a bill? Does it set a precedent for laws enacted without presidential assent? Can the judiciary truly step into the executive's shoes to enforce law? The debate also touches upon the concept of judicial activism versus judicial overreach. Judicial activism is often seen as a positive force, where the judiciary proactively protects the rights of citizens and interprets the law in a way that promotes social justice. However, when courts exceed their legal authority and make decisions that fall within the jurisdiction of the other branches of government, their actions are considered judicial overreach. The primary criticism of judicial overreach is that it creates 'judge-made laws,' effectively giving the judiciary legislative power. In the context of the Tamil Nadu case, critics argue that the Supreme Court's actions constitute judicial overreach because it effectively assumed the role of the Executive in clearing the bills. This has led to accusations that the court is creating laws rather than simply interpreting them. The opinions of legal experts are divided on the issue. Some argue that the Supreme Court's intervention was necessary to address the problem of prolonged delays and to ensure the effective functioning of the democratic process. They point to the ambiguity surrounding the powers of Governors and the President and argue that the court's actions have clarified these powers and created a crucial safeguard against executive inaction. Others, however, express concerns about the long-term implications of the court's actions. They argue that setting deadlines for the President and invoking Article 142 in this manner undermines the principle of separation of powers and could lead to a situation where the judiciary becomes too powerful. They also warn that the court's actions could have unintended consequences and create instability in the constitutional framework. The Attorney General of India has also weighed in on the debate, criticizing the Supreme Court for delivering its judgment without hearing the side of the President and the central government. This raises concerns about the fairness of the process and the potential for bias in the court's decision. The Attorney General's comments highlight the importance of ensuring that all parties have an opportunity to be heard before the court makes a decision that could have significant implications for the country's constitutional framework. Ultimately, the debate over the Supreme Court's intervention in the Tamil Nadu case raises fundamental questions about the balance of power in India's democracy and the role of the judiciary in safeguarding the Constitution. While some see the court's actions as a necessary step to address executive inaction and promote the rule of law, others worry about the potential for judicial overreach and the erosion of the principle of separation of powers. The outcome of this debate will have a significant impact on the future of Indian democracy and the relationship between the different branches of government.
The Supreme Court's directive to the President, setting a deadline for acting on bills, has further fueled the debate surrounding judicial overreach. Vice President Dhankhar's strong condemnation of this directive highlights the concerns that the judiciary is encroaching upon the powers of the Executive. He questioned the implications of such judicial interventions, raising concerns about the potential for judges to legislate, perform executive functions, and act as a 'super Parliament' without accountability. Kerala Governor Rajendra Vishwanath Arlekar echoed these concerns, stating that the Constitution does not explicitly grant the Executive a time limit for acting on bills passed by the state legislature. A senior government official also expressed concerns about the judgement diluting the President's 'absolute veto' power, which serves as a check on legislation that contradicts national interest or the Constitution. Furthermore, the official criticized the requirement for the President or Governors to justify their actions before a court, arguing that it undermines constitutional comity and Article 361, which grants them legal immunity. Allahabad High Court advocate Rajan Singh cautioned that the judiciary's intervention could lead to 'unpredictable consequences' and its deeper involvement in governance. Attorney General R Venkataramani criticized the judgement for not considering the President's and the central government's perspective, emphasizing the importance of 'hearing the other side' in matters of justice and constitutional interpretation. Despite the widespread criticism, some legal experts have defended the Supreme Court's actions. Former attorney general KK Venugopal strongly supported the judgement, asserting that the apex court was justified in placing the President and the Governor on the same level. Senior Advocate Shadan Farsat praised the safeguard created by the court to address the ambiguity surrounding the governor's powers, while Senior Advocate Rakesh Dwivedi, representing Tamil Nadu, highlighted the clarification of the President's powers under Article 201. Former Secretary General of the Lok Sabha, PDT Achary, criticized the Governor's delays and lauded the judgement's unique approach of setting timelines for executive action. Adish C Aggarwala, former president of the Supreme Court Bar Association, supported the use of Article 142 but suggested that the Governor should have been given the option to assent before the court issued a deemed assent order. These conflicting perspectives demonstrate the complexity of the issue and the lack of consensus on the appropriate balance of power between the judiciary and the Executive. The Supreme Court's intent was to address a 'constitutional silence' by establishing a time frame for executive action on bills passed by state legislatures, aiming to hold the Executive accountable. However, the Ministry of Home Affairs is reportedly considering filing a review petition in the Supreme Court, seeking reconsideration of the division bench's judgement. The intense debate over the Supreme Court's actions, particularly the setting of deadlines for the President and the use of Article 142, has underscored the tension between judicial intervention and executive authority. Vice President Dhankhar's criticism has amplified the concerns of those who believe the Supreme Court's landmark April 8 order represents a case of judicial overreach.
The heart of the matter lies in the very definition of judicial activism and judicial overreach, and how this definition is applied to the present case. Judicial activism is broadly defined as a proactive role played by the judiciary in protecting the rights of citizens by taking an active role in interpreting and shaping the law. When the court takes proactive measures in interpreting and applying the law, it ensures that the law evolves and adapts to current realities. This adaptation ensures that the law remains relevant and continues to address the needs and concerns of the people. The judiciary can, through its interpretations, breathe life into the Constitution and ensure that the constitutional values are upheld. This aspect of judicial activism helps promote social justice and protect the rights of vulnerable sections of society. However, a line is crossed when the courts exceed their legal authority by delivering orders or making decisions that are within the jurisdiction of the other branches of the government. This is when their actions are considered an overreach. The primary criticism of judicial overreach is that it creates 'judge-made laws.' These are laws that are not enacted by the legislature but are instead created by the courts through their interpretations and rulings. These 'judge-made laws' can potentially disrupt the separation of powers and undermine the democratic process, because the judiciary lacks the democratic accountability that the legislature possesses. In the present context, the central point of debate revolves around whether the Supreme Court's actions in setting deadlines for the President and Governors and using Article 142 to clear bills constitute judicial activism or judicial overreach. Those who argue that it is judicial activism emphasize the need for the judiciary to step in when the Executive fails to act, especially when such inaction impedes the functioning of the democratic process. They emphasize that the prolonged delays in assenting to bills by the President and Governors can create significant governance challenges, and that the Supreme Court's intervention was necessary to ensure that the state legislatures can effectively carry out their legislative functions. This viewpoint also supports the argument that the Supreme Court's intervention was aimed at protecting the rights of the citizens, particularly the right to have effective and timely governance. However, those who argue that it is judicial overreach emphasize the constitutional principle of separation of powers, and maintain that the judiciary should not encroach upon the functions of the other branches of government. They argue that the power to assent to bills is an exclusive prerogative of the Executive, and that the judiciary's attempt to regulate this power undermines the constitutional framework. They point to the fact that the Supreme Court's actions have created a constitutional first, with bills being enacted without the assent of the President or Governor. This, they argue, has far-reaching implications for the constitutional balance and could set a dangerous precedent. In conclusion, the debate surrounding the Supreme Court's intervention in the Tamil Nadu case is not merely a legal technicality; it is a fundamental discussion about the balance of power in India's democracy. It involves complex questions about the role of the judiciary, the limits of judicial authority, and the interpretation of constitutional provisions. The outcome of this debate will significantly shape the future of Indian democracy and the relationship between the different branches of government.
Source: Supreme Court's judicial overreach? Vice President joins experts with fierce criticism