Opinion - Editorials   

Unprecedented intrusion

Even in a milieu where the judiciary has been continually expanding its own powers and entering into areas normally left to the executive and Parliament, a Supreme Court demand for the report of a standing committee of Parliament on a bill under consideration is an intrusion into the law-making process that is unprecedented in its scope and overstepping of authority. The demand has come from the division bench of the apex court that is hearing the issue of reservation of seats for the Other Backward Classes in Central educational institutions. That the bench came close to "requesting" Parliament not to proceed with the bill till it had considered the matter, and desisted only when it was pointed out that it could not pass such an order shows how oblivious the judges were to the limits of their own authority and the constitutionally assigned role of Parliament in law-making. Although the formal order puts it in the form of an "assurance" given by the Additional Solicitor General that "a copy of the Standing Committee's Report shall be placed in a sealed cover before this Court," this was an assurance virtually extracted from the Government during the hearing. Since reports of parliamentary committees are within the control of Parliament and not the Government, the senior law official seemed out of line in providing the assurance, which in any case is meaningless. The order overlooks the fundamental principle of judicial review that courts take up the constitutional challenge to a law only after it is finally passed, never at the stage of consideration by Parliament — and it runs counter to Article 122 of the Constitution. It is also disquieting that the court should interpose itself into the public policy debate on reservations at this stage.

The last two decades have seen the emergence of an activist judiciary that enlarged the rights of the citizens. Thus in the matter of ensuring purity of elections, protection of children, safeguarding women from sexual harassment at the workplace, ending the practice of bonded labour, and also in relation to freedom of expression and fair investigation of the crimes of the high and the mighty, the orders of the Supreme Court have won much applause. At the same time, the court has appropriated to itself the power to appoint judges to the higher judiciary even in the face of the express provision of the Constitution vesting such power in the executive, and has often refused to recognise any bar on its jurisdiction. The court has always been mindful that even with the best of intentions it can upset the fine balance of powers between the executive, Parliament, and the judiciary. First, it has recognised that it cannot give any directions to Parliament to amend any law; secondly, it has repeatedly refused to intervene in any matter pending before the Speaker or the House on such matters as disqualification before the final decision; and thirdly, it only claims the authority to fill a vacuum in any particular area in the public interest or to enforce a constitutional right till a suitable law is enacted. The Supreme Court's latest order ignores these well-established bounds to overreach and smacks of judicial aggrandisement. One hopes the court will step back before the issue turns into a full-fledged confrontation with Parliament.

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