The only check on the judiciary is its own self-restraint. It is only hoped that our lordships keep that in mind at this critical juncture. 

The Supreme Court (SC) has begun to play an important part in our day to day lives. Only recently, it banned the sale of firecrackers in the National Capital Region (NCR) until 1 November.

During a 13 October hearing on the issue of deportation of illegal immigrants from Myanmar, the Rohingyas the SC implied, "earlier, the bench had said that a balance needs to be stuck between the overarching human interest and issues of national security. The bench had further remarked that neither a constitutional court nor the government could remain oblivious to the plight of innocent children, women, old and infirm." Read the full report here.

Are courts supposed to decide matters based on interpretation of law or humanitarian grounds? Or even national security? If all these, which do not involve law points, can be within the remit of the court's domain, do we need elected legislatures and executive branch of the government?

For those who believe courts are supposed to defend the Constitution, interpret law and administer justice, the SC has also devoted time to ban liquor on highways, dance bars, disclosure of names of big loan defaulters, use of pellet guns in Jammu and Kashmir, model rules for states to implement food security, explosion of non-governmental organisations (NGOs), dahi handi, Board of Control for Cricket in India (BCCI), adulteration at fuel pumps, increasing frequency of Delhi Metro trains, framing of a cogent and clear national security policy etc.

Perhaps it is the cumulative result of such orders, triggered by the SC ban on sale of firecrackers in NCR, that prompted the MINT editorial of 13 October. Excerpts:

It is high time the executive returned to take charge at the wheel. The elected government is in the best position to elicit scientific and economic inputs and take a call, even it involves expending political capital. What is happening today is a far cry: the complementary phenomena of executive abdication and judicial activism have created an ugly spectacle of environmental mismanagement in India.

This is not to mean that the good intent or integrity of the court is being questioned. Please read the article "The wrong approach to environmental regulation" here.

The current situation is worrying on many counts.

One, abdication by the executive even on matters as important as national security.

Unlike the scam-ridden United Progressive Alliance 2 (UPA 2), the Bharatiya Janata Party-led National Democratic Alliance (NDA) government is not tainted by scams and has a clear majority in the Lok Sabha. Thus, why this abdication?

Two, the apex court does not explain the reason for a change in its position. Two examples.

"The Supreme Court, on 16 December 2015, banned the registration of luxury automobiles and sport utility vehicles with an engine capacity in excess of 2000cc in NCR responding to concerns over increasing air pollution in the national capital, blamed on emissions by diesel vehicles".

The ban was lifted eight months later with manufacturers being asked to pay a 1 per cent levy.

The public was not told if the ban had reduced pollution levels. What it did was to increase business uncertainty.

Toyota Kirloskar Motor vice-chairman and whole-time director Shekar Viswanathan said:

What is hurting us is not so much the ban but the unfairness. Orders are passed without hearing us. It is going against the principles of natural justice. We feel our vehicles are being targeted. Business Standard, 25/5/16.

On crackers, "it first passed an order on 11 November 2016 (after Diwali) banning the sale of firecrackers. Then it partially lifted the ban on 12 September 2017. In this second order, it introduced several arbitrary caps like limiting the number of temporary licences for firecracker sellers to 50 per cent of those given in 2016”. The judges also made statements like: “In our opinion, even 5,000,000kg of fireworks is far more than enough for Dussehra and Diwali in 2017.”

And then finally, it decided on Monday that while the 11 November 2016 order will stay in force, the 12 September 2017 order will only be effective from 1 November 2017. To make matters worse, the court has ordered suspension of all the temporary licences issued after its 12 September 2017 verdict, which allowed the grant of these licences – albeit with a cap. The Supreme Court couldn’t have followed a more muddled and ad hoc approach." (Mint 13/10/2017 editorial).

Three, there is little debate on court orders.

A court order was meant to be an interpretation of law – so, a judicial order could not be questioned. So far so good.

The problem arises when courts pass orders on matters affecting our day to day life and considered to be the domain of the executive. Since they are passed by a court they assume the role of a judicial order. Thus, they cannot be questioned.

Four, SC orders on BCCI is an example of the absence of public debate on its validity and reason.

Alok Prasanna Kumar, senior resident fellow of Vidhi Centre for Legal Policy wrote:

In truth, it’s not the BCCI I’m worried about. Had the court ended the matter with the finding that BCCI was a public authority and thereby intervened in the decisions of BCCI’s officer-bearers, who were acting in blatant violation of every known legal principle, there would have been nothing wrong. What the BCCI case represents is an instance where the judiciary has stepped into a legal terra nullius – there’s no precedent, no principle, no law that guides it on the legal wisdom of enforcing the Lodha committee recommendations on the BCCI. The court is ill-equipped, and worse, lacks the humility to understand that it is ill-equipped, to articulate the wisdom of the changes suggested by the Lodha panel.

It is not clear on what basis is SC going after the BCCI.

In all fairness, a very good recommendation of the Justice Lodha Committee is to legalise betting in India. Hope SC passes a law to legalise betting. Just as it took the electronic platform of the National Stock Exchange to reform the Bombay Stock Exchange, a similar platform could make betting transparent, reduce black money and enhance government revenues.

Five, even as the apex court is accused of judicial overreach, the collegiums have not given a roadmap to reduce backlog of cases. (Pending matters stood at 60,517 as on 1/5/2017 down from 65,970 as on 1/7/2014).

Further, T N Ninan wrote in Business Standard, "delays in courts make it difficult to enforce contracts – and this is a factor in the World Bank's rankings on ease of doing business".

The preceding two examples tell how court decisions effect growth rates and foreign direct investment. Should people hold courts or the executive responsible for fall in growth rates and India's ranking in the ease of doing business?

Six, an environment is created where the executive is considered corrupt and incompetent with court orders providing solutions (at times they have).

Whilst accepting and not defending corruption in the government, the question to be asked is, can the judiciary say it is corruption free?

A Google search threw up a Outlook India report of 16/9/2010 titled "Eight Of The Last Sixteen Chief Justices Of India Were Definitely Corrupt".

An excerpt from the same read, "the contempt proceedings against Mr Prashant Bhushan were instituted for his following statement in an interview to Tehelka: “In my view, out of the last 16 to 17 chief justices, half have been corrupt. I can’t prove this, though we had evidence against Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment”.

Without casting aspersions on any member of the judiciary, living or dead, can the honourable SC tell people if these charges were investigated and findings thereon.

Seven, we must at all times remember what former president Pranab Mukherjee told the fourth retreat of Supreme Court judges in April 2016.

He said: Each organ of our democracy must function within its own sphere and must not take over what is assigned to others. The balance of power between the three organs of the state is enshrined in our Constitution. The Constitution is supreme. The exercise of powers by the executive and legislature is subject to judicial review. However, the only check possible in the exercise of powers by the judiciary is self-imposed discipline and self-restraint by the judiciary.

Clearly, courts have ignored words by the former president. Why else would the Punjab and Haryana High Court fix the timing for bursting of crackers from 6.30pm to 9.30pm.

Having said that, it must be emphasised that by and large people have a greater sense of comfort, when contentious issues are taken up at the judicial level. There is much less trust in executive or administrative deliverance of justice. Further, governments in power across parties, instead of taking prompt and tough decisions, sometimes prefer the judicial system to take decisions on their behalf – so that their vote banks are not hurt by their decisions.

Conversely, can the executive interfere in the functioning of the judiciary since it has failed to provide timely justice?

Eight, have public interest litigations (PIL) made courts an alternate power centre?

Two examples:

a) "Under the Finance Act that came into effect from 1 April 2017, the Centre decided to drastically reduce the number of tribunals from 36 to 18 and give itself the power to appoint, remove and decide the qualification of members of these quasi-judicial institutions Tribunal, Appellate Tribunal, NGT and other Authorities). The case backlog before Customs, Excise And Service Tax Appellate Tribunal is 97,672 cases. The Debt Recovery Tribunal has a pendency of nearly 50,000 cases."

An NGO, Social Action for Forest and Environment (founded by Vikrant Tongad in 2013. "Initially started working on the local issues of Greater Noida like environmental education, corruption and awareness about Right to Information. Later they shifted their attention to working on water conservation in nearby areas"), challenged Part 14 of Finance Act 2017 and Tribunal Rules under which the decision was taken. It argued that the PIL termed the move as a "naked attempt by the government to usurp judicial appointment power and encroach upon the independence of the judiciary."

Neither the SC nor NGO questioned the huge backlog of cases nor suggest a plan to reduce it.

Does SC's striking down of the National Judicial Accountability Commission Act, 2015 (NJAC) mean that the government has lost the right to make appointments to quasi-judicial institutions?

Does independence of the judiciary mean that only judges can appoint judges even in quasi-judicial institutions?

A lay man might interpret this to be another attempt by the judiciary to protect its turf. In simple language, resistance to change and being held accountable.

b) According to a 7 September report, "the exponential rise in the assets of MPs and MLAs during their tenure as lawmakers has come under judicial scanner with the Supreme Court on Wednesday directing the Centre to file a comprehensive report on what action or probe it has conducted against 289 legislators, including some senior leaders."

In response to a PIL filed by an NGO, Lok Prahari, the honourable justices said that a probe is needed to find the source of income and whether property amassed was through legal means.

This issue raises many questions:

One, did those who framed the Indian Constitution want the apex court to probe into the sources of income? If the answer is yes, then must the Court restrict itself only to politicians?

Two, individuals, corporates and government employees etc are known to possess assets that are disproportionate to their known sources of income. Will the apex court, in response to a PIL, go after them too?

Three, do judges declare their assets?

I visited the Supreme Court and related websites. Here is what I found.

It was in 1997 that a “full court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office, and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time.”

Table A below gives names of those judges who made voluntary declarations based on the 1997 resolution.

A simple perusal of the declarations, as seen on 14 October 2017, shows that 14 of the 25 judges voluntarily declared their assets. Some declarations do not have a date. Four of the 12 judges have updated their declarations.

Status: Voluntary declaration of Assets by Honourable Judges of Supreme Court

Of the 11 judges, who have not made 'declarations', five were appointed in February 2017, two in May 2016 and the balance in September quarter of 2014.

The following are some broad observations one can make from the declarations made on the Supreme Court site.

One, "if every candidate contesting a Lok Sabha or state assembly election has to declare assets and Section 44 of the Lokpal and Lokayuktas Act 2013 mandates that every public servant shall make a declaration of his assets and liabilities as well (that) of his spouse and dependent children in the manner as provided by or under the said Act”, should it not be mandatory for all judges of the Supreme Court and high courts to declare assets and liabilities?

Whether or not judges are public servants is for constitutional experts to decide and beyond the scope of this article.

If the assets and liabilities of the Union council of ministers (2013-14) are in public domain, can some judges (SC and HC) claim a status higher than duly-elected representatives?

Two, a 'declaration' is relevant when it has a date.

Three, a 'declaration' has greater credibility and relevance when it is updated regularly.

Four, the 1997 resolution refers to making 'declaration' within a reasonable time of the judge assuming office.

The judiciary was at the forefront in India's battle against corruption. Its orders on 2G and coal scam are worthy of praise.

Having said that, can the judiciary sit in judgement on a case when it is not mandatory for its judges to make a public declaration of assets.

In order to make the system transparent, judges at all levels must make a 'declaration' of their assets and liabilities, which must be uploaded on respective court sites. These should be dated, signed and periodically updated at a pre-defined frequency.

Surely the jump in assets of MPs and MLAs need to be investigated. However, the law needs to permit that those in high public office are subject to income tax scrutiny by courts. Or else cherry picking of a group could be construed as a case of judicial overreach.

Today, the judiciary acts on omission and commission. It is important for the judiciary to be perceived to be above board and lead from the front. Simply put, walk the talk.

Humble suggestions from an aam aadmi.

Courts could prioritise their work as defending the Constitution, interpreting law, providing timely verdicts on criminal and civil cases. Only when they have achieved 85 per cent efficiency should they venture into legislative and executive domains via the PIL route.

If courts reach a conclusion that the legislature and executive are remiss in their duty they may issue mandamus (directions or orders or writs, including writs in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warranto, whichever may be appropriate for the enforcement of any right conferred by this part") to other branches of the government.

The purpose of raising various issues in this article is to provoke thought and not cast aspersions on the judiciary. If this article has hurt sentiments inadvertently, the author expresses apologies in advance. The author has taken utmost care whilst collecting data on declarations by respected judges. If there is any error, it is inadvertent and not intended to defame or spoil the name of any individual judge or judiciary at large.

First published www.swarajyamag.com