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Introduction

When Mr. Ronald Dworkin said that democracy is enhanced by protection of rights by judicial review – he had an institution of dispute resolution in mind.[1] The Supreme Court also justified its Public Interest Litigation (‘PIL’) jurisdiction as a step towards resolving constitutional rights disputes which existed between the state and citizenry, but which could not be addressed in the traditional adversarial manner because of poverty and other institutional barriers.  

While undoubtedly judicial review and PILs enhance democracy by protection of rights, what has been mentioned as ‘Dialogic Jurisdiction’ by the Supreme Court in its order dt. 31.05.2021 in the Suo Moto Writ Petition on Oxygen Supply, Vaccination, etc.[2], is a constitutionally destructive concept. According to the court, Dialogic Jurisdiction is a sou moto platform provided by the Supreme Court where anyone could come to express their opinion on the policy decision taken by the Executive to address a particular issue – an open room for discussion so to say. With, however, the Supreme Court taking the final decision on the policy - directly or indirectly.    

To a lay person, it may sound constructive at first, as any fallacy does. In reality though it is an act of judicial overreach where the court is attempting to become an institution of governance, without the accountability attached to governance, leaving behind its constitutionally demarcated role of being an institution of dispute resolution.

While the list of pending matters at the Supreme Court; its persistent failure to reopen physical courts since last one year driving livelihoods of thousands to the ground; and its unfortunate attempt to make several long-term structural changes to procedures (in the absence of the Bar and without consulting all the ‘stakeholders’), speaks volumes for its own efficiency and propriety in administrative governance, treading into the domain of executive governance is an ironically abhorrent exercise. That at its core, is anti-democratic.  

Today in social and other media, interference in judicial administration is in the form of rewards and punishments of reputation to judges. Catchy phrases quoted in the headlines and tea-time soft stories are almost daily published across platforms with prominent photos of favoured judges with the aim to make them PR propelled celebrities. While frivolous cover-page magazine articles are baselessly published to demonize the unfavoured ones. This is of course in tandem with the usual suspects of retired judges and lawyers, who pander to a particular line of misthought and selectively outrage at instances with readied statements and photographs as a clear act of false sense of prominence or survival. At times all of this reminds one of Alexander Pope’s satire, The Rape of the Lock.

Accordingly, at such a time this newfound jurisdiction comes as a rude shock to the constitutional administration of the country by the unelected judges “whose natural virtue has been corrupted by ‘artificial Ignorance, and learned Gibberish’”, as Mr. Jeremy Waldron (borrowing from Mr. John Locke) puts it in his book, Law and Disagreement[3], on the legitimacy of judicial review in a democracy.

The placement of this jurisdiction in the three-judge bench order is to the Court’s apparent autocracy – almost an institutional precursor to what 24th and 25th Constitutional Amendments were to the National Emergency in the 70s.

Unfortunately, we do not have doyens of the bar like Mr. Nani Palkhivala today to stand up against such overreach by a prominent constitutional organ of the country.

Dialogic Jurisdiction - Unconstitutional and Per Incuriam

In short, the Supreme Court’s adventure is unconstitutional and also per incuriam for the following reasons:

1. Separation of Power – Under our Constitution, elected Legislature governs by enacting laws demarcating the Rule of Law; elected Executive manages affairs within the contours of those laws; and the unelected Judiciary protects the citizens by ensuring that not only the Legislature and the Executive, but the Judiciary itself does not go beyond the Constitution. Being an unelected arbiter, it is of utmost importance that the court always respects the contours of its constitutional powers. Any adventurism beyond these contours is bound to lead to a constitutional friction between these organs.[4] Therefore, when the Supreme Court chooses to run like a panchayat-esque jurisdiction, it completely negates its role under the constitution, and it is nothing short of unelected judges attempting to abrogate to themselves constitutional power which they could exercise as citizens only if they were so duly elected in a General Election.
    
2. Policy highest form of constitutionally protected executive decision- courts could not test wisdom of the policy or cherry-pick experts/shareholders to its choosing - Executive’s prerogative to frame policy is the bedrock of representative democracy. There is a reason why under our constitution, as interpreted by the Supreme Court itself, policy decisions, especially with fiscal implications, are put on a pedestal when it comes to judicial review. Policy decisions are taken behind closed doors by taking into consideration all relevant expert and experienced advice in a free environment, which at times may be politically sensitive or even politically incorrect. However, a part of the whole process is documented in government files, which are generally available for scrutiny. The Supreme Court, keeping in mind the reality of the process, has used words like ‘elbow room’ ‘play in the joints’[5], which means that the courts ought not to paralyse executive decision making and interfere in such policy matters unless the actual impact of the policy is so palpably discriminatory that it utterly deprives a citizen or a section of the citizenry of its rights altogether.[6] In other words, the space for notional or marginal differentiation/errors has been allowed to the Executive consistently by past binding judgments. Also, it is important to remember that wisdom of a policy is not justiciable.[7] The court’s jurisdiction is limited to adjudge if the policy is manifestly arbitrary i.e. to see if the procedure followed by the Executive to come to the ‘subjective satisfaction’ was manifestly insufficient, or significantly coloured with bias and extraneous considerations; or in light of actual facts, severe discriminatory ramifications of significant nature are made out by the policy’s application. It is also pertinent to note that it does not lie with the courts to decide which ‘expert’ or ‘stakeholder’ to rely on or whom to ignore. Its role is limited to ensure that an expert from the field was considered in the decision making and not beyond. Under the Constitution, the Executive is answerable to the Legislature, and it is the job of Parliamentary Committees to carry out detailed enquiries into the merits of executive decisions. It is not the job of courts. Therefore Dialogic Jurisdiction, which is primarily an open-ended enquiry to adjudge the wisdom of a policy, is beyond the settled law on the issue. Under the contours defined by the Supreme Court in its previous judgments, the court could not sit as an Appellate Authority to initiate such judicial inquiries, especially sou moto, to adjudge executive policies.  
    
3. Against settled judicial procedure and Article 145 -  Judicial procedure in India is adversarial in nature where adjudication is based on sworn statements from both sides on facts. Judges are entitled to carry out an enquiry but in the context of facts filed as sworn statements. Even while adjudicating grievances amongst governments under Article 131, or a writ petition filed by one state government against another state government or against the Central Government under Articles 226 or 32, this is the constitutionally expected procedure. Courts are not entitled to carry out a roving enquiry out of context without such factual basis from both sides. In PILs this requirement has been relaxed to a certain extent, but only in cases where the violation of the right and the inaction of the executive were both palpable and severe. Suo moto cases were taken up when the Executive completely failed to take any action whatsoever, despite being aware of the situation. However, the thin line separating necessary judicial activism and judicial overreach is breached when the court exercises Dialogic Jurisdiction, especially Sou Moto, and goes into a roving enquiry without necessary pleadings setting out factually a case of complete or significant inaction on the part of the Executive; and also showcasing severe cases of violation and deprivation meriting such interference. Without this factual basis, the whole exercise becomes a clear attempt by the judges to substitute their own wisdom to that of the Executive, which is completely against the concept of democracy under our Constitution. All constitutional checks and balances are severally compromised when Courts assume the roles of the complainant, investigator, prosecutor, and judge all at once- directly or indirectly. Even otherwise, considering Article 145, reading into Article 32 this ‘Dialogic Jurisdiction’ besides being per incuriam of previous judgments and of other articles in the constitution, requires a pronouncement by a Constitution Bench for it to be valid.
    
4. Misinterpreting Articles 14, 19 and 21 – Socialism from Backdoor – Supreme Court has pointed out how lawyers by way of clever drafting could make out a cause of action where there exists none[8]; which in case of a writ petition means wrongly projecting a situation as a violation of Articles 14, 19, and 21 by clever drafting. It is the duty of courts to ensure that words of articles are not twisted to enable superimposition of contested political policies and ideologies under the garb of rights into specific Fundamental Rights. For e.g. principles of socialism (faux or otherwise) ought not to be introduced by the backdoor into Articles 14, 19, and 21. Moreover, the width of these rights must also be determined taking into consideration other provisions of the Constitution. For e.g. any claim for reading into and enforcing a right to health facilities under Article 21 must be seen in light of express inclusion of such goals in the unenforceable Article 47. The court must not colourably take upon itself what was clearly demarcated under the constitution for the elected Legislature and the Executive. Furthermore, Fundamental Rights are protections primarily against state action, and only in limited circumstances could they be cited in extreme cases of inaction. In a democracy, the buck of welfare of the people eventually stops at the elected Legislature and Executive. It is the elected representatives who must choose and implement the policies that they fight elections on. As stated earlier, in PILs, courts have been allowed to step in only in cases where the violation of the right and the inaction of the executive were both palpable and severe.

Conclusion

Surprisingly in a democracy, a lot of faith has been bestowed upon unelected judges under the Constitution. This faith was affirmed when the Supreme Court protected the rights of citizens, especially from Communism, when it read into the Indian Constitution an eternity clause i.e. the ‘Basic Structure’ clause. The Supreme Court again rose to the occasion to protect the rights of the citizens in environmental and state atrocities matters when PILs were introduced dissolving institutional barriers.

However, the court’s journey downhill began when it became a political institution by abrogating to itself the power of appointment of judges by choosing “concepts” over the actual words of the constitution, throwing into the dustbin of constitutional history the methods of democratic checks and balances on the judiciary provided under the constitution. It further went downhill when it chose to exercise its power to take disastrous economic decisions with severe ramifications in the Spectrum and Coal cases.  

Dialogic Jurisdiction is on the same scale, but further downhill. Where the court rather than making its own administration efficient – including for  ‘frivolous matters’ – is trying to take on the work of the Executive at the cost of democracy. This recent move, which is in violation of all previous generational wisdom expressed in judicial pronouncements, probably is the last straw before a constitutional crisis occurs because of judicial overreach and the lack of the traditionally prescribed judicial self-restraint. Unfortunately, it is not far before our institution will begin to be seen as a political meddling institution driven by vested interests, taking away the credibility built over generations of self-regulation. Sadly, if it goes unchecked immediately, what started as a way to keep-up with a Living Constitution could slowly become a reason for a dying one.