‘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.

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5 thoughts on “‘Over-Judicial Activism’ by the Indian Supreme Court?

  1. I agree that they are widening the scope but personally, I feel that it is for a good cause.
    More so, we can expect a few more judgements of such nature in the next 3 months as Justice Markandey Katju is due to retire in September and it has almost become a tradition in the Supreme Court to give sensational/controversial judgements at the eve of their retirement

    • I agree that Katju is at the eve of his retirement, hence his sensationalism does not surprise anyone by overreaching his previous sensationalisms.

    • The text of Art. 142 also clearly states that the SC can do anything that is necessary to do complete justice in any “cause or matter pending before it

      So, the limitation is only with regard to the matter that was pending before the Court, and there is nothing of that (challenge to Family Courts Act) sort pending at the moment.

  2. Pingback: A Hyperactivist Indian Supreme Court? Wall Street Journal reports. « Legal Decisions

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