‘Over-Judicial Activism’ by the Indian Supreme Court?

In an ongoing case at the SCI (Supreme Court of India), a division bench, comprising Justices M. Katju and G. S. Misra, better known for their conservative and sometimes controversial decisions, have passed an order, which prima facie seems illegal and beyond their jurisdictional merit and capability.

The case relates to a constitutional challenge of section 36 (4) of the Industrial Disputes Act, 1947 which requires a party to take prior permission of the opposite party and the Labour Court/Industrial or National Tribunal to be represented by a legal practitioner. The matter has come up before the SCI on a Special Leave Petition under Article 136 of the Constitution of India from a decision of the Punjab and Haryana High Court.

Instead of restricting itself to the question of law of the appeal, the Bench went on to expand the scope of the petition, suo motu and without any argument in that regard by either party, to also include a similar provision under section 13 of the Family Courts Act, 1984, which requires leave of the Family Court for legal representation.

In what seems to be an ‘over-judicial activism’ of the SCI, the matter has been posted for hearing on July 12, 2011 after seeking opinions of the Amicus Curiae and the Attorney General.

Two consequences flow out of this ‘suo motu‘ action:

  1. The expansion of the scope of the petition is uncalled for for two reasons. One, the petition has nowhere mentioned that the parallel provision in the Family Courts Act, 1984 should also be considered. And a suo motu action of this kind is unheard of, especially when the constitutionality of a legislation is challenged in a petition. Second, Indian judicial system is based on activation by a person who has been caused any legal injury, of course a Public Interest Litigation is the exception. Therefore, this apparent bravado by the SCI is beyond the scope of what the parties had approached the SCI in the first place.
  2. The SLP as another mode of constitutional remedy has undergone a sea change to include many kinds of legal challenges. From being restrictive and circumspect in its approach in admitting SLPs, the SCI has certainly come a long way in admitting such matters, making SLPs one of the largest routes for petitioners to approach the SC from any order of any tribunal or court in India. Having said that, does that mean that this leeway should be taken so far so as to expand the scope of the petition to include a legislative provision that is a subject of the petition and suo motu include such a provision in a constitutional challenge for validity? Seems very overreaching and the legality of such an action is questionable.
What remains to be seen is how the Court will deal with the jurisdictional arguments in the course of the hearings. Also, the enforceability of any decision as an outcome, whether it can be a binding precedent and a law of the land(Article 141)? It is sure going to draw some criticism in the days to come. The bench has sure become sensationalist, by its reputation!

Read this Hindu article regarding this order.

Split Decisions on Division Benches of the Supreme Court

In the past couple of weeks, two Supreme Court decisions have been ill-fated in that they were rendered meaningless due to split verdicts by 2-judge bench of the Supreme Court of India.

First one was the bail plea of Abdul Nasir Maudany, prime accused in the Bangalore bomb blasts of 2008.

Second was the decision in a PIL regarding an office of profit held by the IPL Chennai Super Kings owner and BCCI Treasurer N. Srinivasan.

There are two consequences of this:

  1. It renders the decision bad in the eye of the law – the precedential value of which having been reduced due to the split verdict.
  2. It creates an additional burden on the already overburdened Indian judiciary as now this incongruous decision will have to be resolved by a higher 3-judge bench.
Jurisprudentially, it is unfavorable to constitute 2-judge benches.  Especially in the higher judiciary as the aftermath of split decisions, not unlikely given the highly opinionated and free judges with a license to independently differ from their colleagues, is likely to affect the justice delivery system. Something that has to be kept in mind by the Chief Justices when constituting benches to hear matters at our High Courts and the Supreme Court.

Blog at WordPress.com.
The Esquire Theme.

Follow

Get every new post delivered to your Inbox.

Join 1,098 other followers

%d bloggers like this: