Nota to quota: Supreme Court had a field day in judicial overreach

Last week, members of Parliament cutting across party lines were agitated by the Su preme Court allegedly transgressing the cardinal separation of power between the legislature, the executive and the judiciary . The MPs accused the SC of “overstepping“ its jurisdiction to get into the law-making domain through its judgments.

They appear to be still riled by the October 2015 judgment of the SC striking down a unanimously passed legislation creating National Judicial Appointments Commission (NJAC) to replace the 'opaque' collegium system for selection of judges. What added fuel to the anger was the SC's decision to entertain a PIL questioning life-long pension and freebies to MPs and MLAs.

Law minister Ravi Shankar Prasad attempted to assuage the ruffled feathers by declaring, "Parliament to enact, executive to formulate and judiciary to interpret. In this light, if separation of power principle is binding on all, I am sorry to say that it is equally binding on the judiciary."

Why did the SC transgress the boundary of separation of power and attempt to perform tasks entrusted to the legislature and the executive? Since 1950, the SC has been the sentinel of fundamental rights of citizens, who were many a time ignored by both legislators and the executive. In protecting these precious rights, the SC had to walk the extra mile.

Remember Vishaka case?
Though the Constitution had guaranteed equal opportunity to men and women, women had been facing sexual harassment at work place for decades, enduring the depraved acts of male superiors in offices. Lawmakers knew this. But they failed to take steps to legislate and protect women from depraved male colleagues.

The SC preferred not to remain silent. It virtually legislated by providing a mechanism for working women to complain against colleagues and bosses if they passed sexist remarks or indulged in sexual harassment. None of the MPs termed this judgment as judicial overreach.

And the Shah Bano case? For decades, divorced Muslim women lived a life in penury as there was no provision in Muslim personal law to fasten liability on husbands to provide for maintenance to wives after talaq. The SC craftily used Section 125 of Criminal Procedure Code to step around the vacuum in Muslim personal law and granted alimony to divorced Muslim women. No one protested against this judgment as judicial overreach. In fact, it was hailed as a secular judgment. In a federal structure like ours governed by the principle of separation of powers, it is difficult for the judiciary , tasked to protect the fundamental rights of poor voiceless citizens, to close the doors of relief saying the boundary of separation of power is too high to scale.

Take for example the Indra Sawhney case. The SC was hailed as the institution that quelled wild protests by students by ruling in favour of the legislation granting reservation to OBCs, which was over and above the existing quota for SCs and STs. However, it also legislated by capping total quota at 50% of government jobs. The legislators did not mind, as the SC ruling had doused the protests.

The SC transgressed the principle of separation of power again in SR Bommai case by severely curtailing the Union government's power under the dreaded Article 356, under which the Centre, till the 1990s, used to topple elected governments in states at will by imposing President's rule. The restrictions on use of Article 356 were termed as an interpretation of the Constitution, even though for an independent analyst it could qualify as legislative exercise by the SC.

On the election front too, the SC has legislated many times. In the Association of Democratic Reforms case, it put in a new law making it mandatory for candidates to declare their educational, wealth and criminal details to enable voters to make an informed choice while pushing the EVM button.

It also brought in the concept of NOTA, which gave the voter the option of declaring that none of the contesting candidates was worthy of his vote. In addition, the SC also legislated by declaring that an elected representative, who has been convicted and sentenced in such a manner to earn disqualification, cannot continue as a member of the House concerned by merely filing an appeal against the conviction and sentence in a higher court.

No one protested against it as public sentiment, given the abuse of position by some elected representatives, was in favour of the judgment. Parliamentarians have a right to criticise the SC, for it is manned by human beings who are not infallible. But they should always keep in mind what the SC said in SP Gupta case [1982 (2) SCR 365], "...While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary . An independent and impartial judiciary supplies the reason for the judicial institution, it also gives character and content to the constitutional milieu."

Rational criticism, and not motivated angst, always strengthens an institution. And we all know and believe that wise parliamentarians would always mean well to criticise the SC in such a manner so as to strengthen its independence to enable it to dispense justice without fear and favour.