In a major act of judicial activism, the supreme court quashed the appointment of P J Thomas as the Central Vigilance Commissioner rejecting the argument of the Union government that it is the prerogative of the government to appoint anyone. Never before did any court set aside the appointment of such a high functionary.
Eligibility and suitability are two different things and the apex court has outlined the difference between the two in several cases. The Union government, in a sober reaction, has said that the SC’s guidelines would be followed and the law minister has admitted to the ‘systemic failure in governance’.
The argument trotted out by Thomas’ counsel as well as the government that there cannot be any judicial review of the executive appointment has been rightly rejected as the power of judicial review is an inherent power of the court and held to be a basic feature. However, in a democracy, this power of judicial review should be exercised with restraint. But again, it is for the judiciary to define the boundary for itself — this far and no further.
In Vineet Narain case (1998), the supreme court gave guidelines as to how the CBI and the Central Vigilance Commission should be restructured so that it is impervious to any extraneous influence, and how the Chief Vigilance Commissioner should be selected. Chief Justice J S Verma reiterated the ‘filling the vacuum’ theory it is the duty of the executive to fill the vacuum by executive order.
However, these directions were not complied with, but the court did not take it to be contempt of court. In Prakash P Hinduja’s case (2003), the court maintained: “In A K Roy vs Union of India, AIR 1982 SC 710, it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature. Therefore, the direction issued regarding conferment of statutory status on CVC cannot be treated to be of such a nature, the non-compliance whereof may amount to contempt of the order passed by this court.”
The court realised it was overstepping, but it makes a mockery of the directions given in Vineet Narain. Moreover, it creates scope for non-compliance of any orders which the executive decides is beyond the jurisdiction of the judiciary. However, the directions were implemented later on. Now again the court has adopted an activist posture.
There is a growing judicialisation of political issues all over the world. Ran Hirschl in his article ‘The Judicialisation of mega-politics and the rise of political courts’ has commented that the judicialisation of politics has expanded beyond rights issues or transnational cooperation to encompass what may be termed ‘mega-politics’.
Nation-building process
It is so wide in its sweep that it encompasses issues from electoral outcomes and corroboration of regime change to matters of war and peace, foundational collective identity questions, and nation-building processes pertaining to the very nature and definition of the body politic.
Courts had to grapple with issues like the fate of the American presidency, the war in Chechnya, political turmoil in Pakistan, multicultural citizenship in western Europe, the place of Germany in the EU and so on.
Since the Indian supreme court is one of the most powerful in the world, this trend is more pronounced here. The confrontation between parliament and the supreme court began immediately after India became a republic as the elected representatives were emphatic that they had got the mandate to shape the destiny of the nation but the judiciary was equally emphatic that the government or the legislature must not try to interfere with its independence.
The activism of the supreme court is perceptible from the very first year of its inception in the dissenting opinion of Justice Fazl Ali in A K Gopalan’s case. It sowed the seed of judicial component in the legislative function. Though prime minister Jawaharlal Nehru firmly believed in the independence of the judiciary, he, nonetheless, told the Lok Sabha on May 16, 1951, in no uncertain terms that the judiciary had no role with respect to great schemes and big social changes.
The confrontation that started with the enforcement of the constitution and the setting up of the supreme court got sharper with the passage of time. The Golak Nath decision making the fundamental rights untouchable by parliament was the first major example of judicial activism.
Immediately thereafter, Samyukta Socialist Party MP Nath Pai introduced a private member’s bill to restore the supremacy of parliament with respect to the amendment of the constitution. However, it was vociferously opposed by his own party MPs Rammanohar Lohia and Madhu Limaye.
Lohia found a parallelism in the ‘Enabling law’ of Germany, a lawless law which Hitler used to justify his dictatorship. The activism reached a new high when in 1973 the supreme court enunciated the doctrine of basic structure in Kesavananda Bharati case and put a permanent brake on the amending power of parliament.
However, in a certain low for the supreme court, it prostrated before the government during the Emergency (June 25, 1975, to March 21, 1977).