Supreme Court Usurping The Cave Of Legislatures Like Arabian Camel - Need For Restraint Or Control On This Trend

P.L. Goyal, Advocate
District Courts Faridabad
(Retd. Additional District and Sessions Judge)

Date : 20/10/2020

Supreme Court Usurping The Cave Of Legislatures Like Arabian Camel - Need For Restraint Or Control On This Trend

Role of our Apex Court in the matter of interpretation of our Constitution through various judgments right from day one has been very exemplary, splendid, and laudable right from day one which can dumbfound the best of the jurists in the world.

Hardly had the ink on the papers of our Constitution dried that a large number of matters erupted in which constitutionality of various enactments passed by the Legislatures came under challenge. With great erudition, statesmanship, precocity, detachment and vision, the Judges of the Apex Court laid down the basic fundamentals of interpretation as under:-

(a) A court of law must gather the spirit of Constitution from the language used, and what one must believe to be the spirit of the Constitution cannot prevail if not supported by the language vide Keshavan v. State (AIR 1951 SC 128). Where the Constitution has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, the courts cannot limit them upon any notion of the spirit of the Constitution vide A.K. Gopalan v. State (AIR 1950 SC 27);

(b) Presumption is always in favour of the constitutionality of an enactment unless shown that there has been a clear transgression of the constitutional principles vide Chiranjit Lal Chaudhary v. Union of India (AIR 1951 SC 41) which was reiterated in several cases including the one in Madhu Limaye v. SDM Monghyr (AIR 1971 SC 2486);

(c) Under our Constitution an enactment can be annulled being ultra vires of the Constitution only when it is proved that the Legislature had enacted the law without there being the source of power in this regard in the Constitution, or that the said enactment was against the express provisions of the Constitution;

(d) Article 14 of our Constitution states that "State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

However, we must know that men are unequal; consequently a right conferred on persons that they shall not be denied the "equal protection of laws" cannot mean the protection of the same laws for all. It is here that the doctrine of classification steps in, and gives content and significance to the guarantee of the equal protection of the laws for all persons similarly situated. However, such a classification will be permissible only when the same satisfied two conditions namely, (i) it must be founded upon intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) the said differentia must have a rational relation to the object sought to be achieved by the statute in question vide Budhan Chodhary v. State of Bihar 1956(1) SCR 1045; and Ram Krishan Dalmia v. Justice S.R. Tendolkar (1959 SCR 279).

Our Apex Court had been discharging the functions of adjudicating the constitutionality of various statutes very smoothly and consistently on the above said guidelines till the years 1973-74 where after judicial activism took the centre stage and the Hon'ble Judges started vying with each other in projecting themselves as the vanguards and champions of personal liberty of the citizens by using very literary and ornamental language in their judgments which has resulted into transgression by the Judiciary in the field of Legislatures many a time. Of late, the Apex Court has coined two doctrines for judicial review namely, `constitutional morality' and `manifest arbitrariness' since the year 1974 onwards.

Dr. B.R. Ambedkar, the chief architect of our Constitution, had advocated the concept of `constitutional morality' by describing it as a beacon light which helps to preserve the faith and trust in the constitutional courts. The same was considered indispensable and effective for coordinating the conflicting interests of different people as any powerful and obstinate minority might render the working of the free institutions impracticable, without being strong enough to conquer ascendance for themselves.

Stray references to the phrase `constitutional morality' can be found in some decisions of the Supreme Court of India. In the famous decision in Kesavananda Bharati (AIR 1973 SC 1461) two of the Judges had made a casual reference of this phrase. Then in the year 1981 in S.P. Gupta v. Union of India (1981 Supp. SCC 87), it was remarked by Venkataramiah J that violation of a constitutional convention would "be a serious breach of constitutional morality". Then Chief Justice A.P. Shah of Delhi High Court in Naz Foundation v. Government of NCT declared Section 377 IPC unconstitutional to the extent it criminalized consensual acts between two adults in private. Stand of the Union of India that the provision was based upon `public morality' was discarded by the court by observing that constitutional morality must outweigh the argument of public morality, even if it was the majoritarian view. Then came the famous `Triple Talaq Case' of Shayara Bano v. Union of India (2017) 9 SCC 1, where our Apex Court laid considerable emphasis in explaining the concept of constitutional morality. The court held that constitutional morality meant `the morality that has inherent elements in the constitutional norms and conscience of the Constitution'. One of the judges (Justice D.Y. Chandrachud) stated that the concept of constitutional morality did not mean only allegiance to the substantive provisions and principles of the Constitution, but signified a constitutional culture which each individual in a democracy must imbibe. Chief Justice Dipak Misra held that the term `constitutional morality' embraced within itself values such as that of ushering a pluralistic and inclusive society and that the concept of constitutional morality `would serve as an aid for the courts to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be'. In Sabrimala Temple case, where entry to the females from 10 to 50 years of age was prohibited, the said convention was discarded by the Judges of the Supreme Court vide judgment dated 28.9.2018 by stating, inter-alia, that the same was also against the constitutional morality.

The other implement being used by the Apex Court in deciding the constitutionality of various enactments is `manifest arbitrariness' by using which various enactments have been struck down as being manifestly arbitrary. This tool has germinated from Article 14 of our Constitution which proclaims from housetop equality before the law.

The doctrine of `manifest arbitrariness' was evolved for the first time in E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555) and subsequently in Maneka Gandhi v. Union of India (1978) 2 SCR 621, and Ajay Hasia v. Khalid Mujib (AIR 1981 SC 487) where the Apex Court observed, inter-alia, that content and reach of the right to equality under Article 14 should not be subjected to a narrow, pedantic or lexicographic approach and no attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. It was further observed that equality was a dynamic concept with many aspects and dimensions and it could not be imprisoned within traditional and doctrinaire limits. Article 14 was striking at arbitrariness in state action and ensured fairness and equality of treatment. Article 14 embodied a guarantee against arbitrariness... and (equality) cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits.

The aforesaid doctrine of manifest arbitrariness has now been invoked in two judgments by the Apex Court which pertained to post constitutional laws namely, Hindustan Construction v. Union of India (2019) SCC Online 19 SC 1520; and Committee of Creditors of Essar Steel v. Satish Kumar Gupta 2019 SCC Online 1478) decided on 15.11.2019. In Hindustan Construction case The Arbitration and Conciliation Act, 1996 was amended by Amendment Act of 2015 where-under it was provided that if a party required a stay against the award then the court could impose the condition of depositing the amount in question or part thereof. Various High Courts in the country had given diverse opinions regarding the applicability of the said condition of pre-deposit to pending proceedings. The Supreme Court ruled in some judgment that this condition will be applicable even to arbitral proceedings which were pending on 23.10.2015. By the Arbitration and Conciliation (Amendment) Act, 2019, the Parliament enacted that the requirement of pre-deposit of the amount will not be applicable to arbitral proceedings which were pending on 23.10.2015. The said Amendment Act of 2019 struck down by the Apex Court being manifestly arbitrary. In Committee of Creditors of Essar Steel case supra, one of the issue before the Apex Court was whether the mandatory period of 330 days laid down for completion of entire corporate resolution process in the context of Sections 4 and 6 of Insolvency and Bankruptcy Amendment Act, 2019 was mandatory. The Apex Court ruled that the same was manifestly arbitrary as the Legislature had acted capriciously and irrationally.

Through these techniques the Apex Court gradually has usurped the power of appointment of the Judges of the High Courts and the Supreme Court. The earlier judgment in S.P. Gupta v. Union of India (known as 1st Judges case) (1981) Suppl. SCC 87 was overruled in Supreme Court Advocates on Record Association case (known as 2nd Judges case) (1993) 4 SCC 411 by holding that in the matter of appointment to the higher judiciary, the Chief Justice of India will have primacy and in the case of difference of opinion between the Central Government and the Chief Justice of India, the opinion of the CJI will prevail. Thereafter, in Special Reference No.1 (known as 3rd Judges case) (1998) 7 SCC 739, the Apex Court laid the foundation of the collegiums consisting of the CJI and four senior most Judges in the case of appointment to the Supreme Court, and CJI and two senior most Judges in the case of appointment to the High Court. After a long wait and due consideration, finally the Parliament passed the Constitution (99th Amendment) Act and National Judicial Appointments Commission Act, 2014 providing for constitution of a Commission for the said purpose. The Commission was to consist of six members, with CJI as the Chairman. Other members were two senior Judges of the Supreme Court, Union Law Minister and two eminent persons to be selected by the committee consisting of CJI, Prime Minister and the Leader of Opposition. In the case of appointment to the High Courts, the views of the Governor, Chief Justice of the High Court and the Chief Minister were also to be obtained. Even such a reasonable legislation was struck down in the case of Supreme Court Advocates on Record Association v. Union of India by a majority of 4-1.

Although the Judges of the Supreme Court have been proclaiming from the housetop day in and day out that they are performing their duty with vision, dispassionate approach and distinguishable detachment, but in my humble opinion both the doctrines of `constitutional morality' and `manifest arbitrariness' are vague and imprecise and invocation thereof has created a mess and uncertainty in the field of law. One is left guessing as to the exact identity of the constituent facets. There is no method of predicting their effect on any legal or constitutional issues which is not conducive for orderly governance in the country. The traditional touchstone for adjudicating on the principle that there was presumption towards the constitutionality of a statute and that a statute could be struck down only when there was lack of legislative competence or violation of fundamental rights or any provision of the Constitution should not have been deviated from. It is noteworthy that this principle was also invoked even after the doctrines of `manifest arbitrariness' and `constitutional morality' had been running in full swing in State of Andhra Pradesh v. Mc Dowell & Co. (1996) 3 SCC 709. The said judgment in Mc Dowell case was again discarded by a Constitutional Bench of the Apex Court by dubbing it as judgment in percurium.

The Hon'ble Judges of the Apex Court should consider the relationship between arbitrary and discretionary power. Conferment of wide discretionary powers is, broadly speaking, an admission that it is not possible to lay down rules for the exercise of that power. An example may be picked up from Indian Penal Code which lays down (with rare exceptions where a particular sentence must be imposed) the maximum punishment by way of fine and/or imprisonment which can be inflicted on persons found guilty of committing specified offences. A discretion conferred upon judges and magistrates ranging from a small fine to substantial fine together with the maximum term of imprisonment prescribed by law can only be described as arbitrary, for no rules and guidelines can be given for the exercise of the discretionary power. If the conferment of such a power violates Article 14, all punishments prescribed by the Penal Code will be void according to the tests laid down by the newly fashioned doctrines by the Judges of the Apex Court. The judges must realize when a law based upon impermissible classification is struck down for violating the equal protection of the laws that does not involve a finding that the law is "arbitrary". Very highly trained and independent judges can also hold different views as is evident from their dissenting judgments in various cases.

Various enactments have been set aside by dubbing the same as arbitrary and discriminatory without any sound logic or rationale, e.g. in East Punjab Urban Rent Restriction Act, 1949 the provision for eviction of tenants on the ground of personal necessity of the buildings given on rent was applicable only upon residential buildings. The Apex Court in Harbilas Rai Bansal v. State of Punjab (1996-1 PLR 227) held that this classification was irrational and directed that the commercial buildings given on rent could also be got vacated on the ground of personal necessity of the landlord. The Hon'ble Judges failed to discern that there was a logic behind the said classification as the stability of trade and commerce required protection against eviction of tenants from commercial premises. The Judges ought to have realized that presumption of constitutionality assumed that the Legislature correctly understands and appreciates the needs and problems of its own people vide State of Bombay v. F.N. Balsara (1951 SCR 682); R.K. Garg v. Union of India (AIR 1981 SC 2138). Equally, what arbitrariness or manifest arbitrariness was involved in the two cases of Hindustan Construction, and Committee of Creditors of Essar Steel (supra) is not intelligible.

The doctrine of `constitutional morality' is equally vague and imprecise. The Naz Foundation case in which Delhi High Court had decriminalized Section 377 IPC by invoking the said doctrine was not approved by two Hon'ble Judges of the Apex Court in Suresh Kumar Koushal v. Naz Foundation 2014(1) RCR (Criminal) 286, meaning thereby that the two said Judges did not approve of the said doctrine. Further, in Triple Talaq case of Shayara Bano also there was no unanimity of the Judges on these principles. Two out of the five Judges namely, Chief Justice J.S. Khehar and Abdul Nazeer did not hold that the personal law of triple talaq was liable to be struck down on any of these two doctrines. Again in Sabrimala Temple entry case one of the Judges (Indu Malhotra J) did not hold the practice of ban on entry of women between 10-50 years of age was unconstitutional on either of these two grounds by observing that morality meant different to different persons in our pleural society. In this manner when there is no unanimity regarding the concept of `constitutional morality' even amongst the Judges of the Apex Court, there is no justification for invoking the same while adjudicating constitutionality of the enactments passed by the Legislature. Let me hasten to add here that the Patna High Court, in the year 1985, held in Yugal Kishore Singh v. State of Bihar (AIR 1985 SC 265) that the powers of judicial review were restricted because of `constitutional morality' to honour and respect the legislature's wisdom.

These rhetoric doctrines have ignored the concepts of separation of powers and of checks and balances upon which our constitutional edifice is pinned down. The same are likely to lead to strange and chaotic consequences by destroying the symmetry of our beautifully crafted Constitution. The Hon'ble Judges should rest their judgments on sounder and firm principles instead of being swayed away by rhetoric. A prolific writer of French Renaissance namely, Michel Do Montaigne had wisely stated, "No matter we may mount on stilts, we must walk on our own legs. And on the highest throne in the world, we still sit only on our bottom!".

The Apex Court is transgressing and intruding in the legislative field gradually like Arabian camel in the tent of the trader as is the fable that you must have heard from your grand parents. They are biting more than they can chew. It is time that the Hon'ble Judges should keep restraint. The Legislature should also take timely steps for the protection of its edifice. Unfortunately, the legislators are lying dormant and asleep. May be because they are always involved in politicking and toppling the governments of each other and have hardly any time for these aspects.

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