“We gained our freedom at a great cost. Every Indian, therefore, has to use his liberties to constantly question the actions of those in power because democracy gives no tickets to free meals! It is for us to assert and guard liberty and not be complacent about any encroachment”, urged Justice Ravindra Bhat.
He was speaking on the ‘Role of Judiciary in Governance’ during the first anniversary celebrations of the forum, ‘Connecting Governed, Governing and Governance’ (CG3).
“Today, when the world is reeling under the impact of the Covid pandemic, with painful and traumatic consequences disrupting lives and livelihoods, leaving behind destruction, despair and impoverishment, it is more important for people to cherish liberties and constantly question, through every legitimate channel, the moves and policies which undermine democratic government and displace creepingly the liberties that the Constitution guarantees”, stressed Justice Bhat.
“Those nations who reposed their trust in a democratic way of governance must be prepared for imperfections. But its people have to exercise their freedom to question those governing them unremittingly and unfailingly, and through this dialogue, realise their aspirations. It may be a fundamental right, right to get your ration card or to change your date of birth, if you don’t get justice internally you have to go to the court- there is no other way. The rule of law through democracy is a continuing work-in-progress where people’s scrutiny is paramount and courts are part of the dialogue. There is a thin line that divides the rule of law from the rule by law – one is democracy and the rulers are the people, and the second one is the rule by a monarch, a dictator or tyrant. The courts are the last stop to ensure continuity of the rule of law when all else fails!”, articulated Justice Bhat.
He expressed the view that it is now more than ever that the “unseen, unheard and seldom-remembered people” are protected by those who have the voice and who can go and fight for them. “Because if you fight for others, you fight for yourself…when your turn comes, there will not be anyone”, he said.
‘Courts face the charge of activism when they deal with controversial issues’- Justice Bhat
Justice Bhat addressed the questions of how courts engage with policy, they disrupt the exercise of legitimate power wantonly, and how accountable they are.
Justice Bhat stated that courts face the charge of activism when they deal with controversial issues, and he opined that in this context, one must remember that courts are placed in a system of checks-and-balances and that characterising courts or judges as “activist” or “strict constructionist” or “conservationist” is limiting.
“The Supreme Court of India, unlike other democracies, has been conferred the advisory role. What is it for? Our Constitution framers recognised that it is uniquely positioned to pronounce, if consulted, on the validity of the laws and policies which the Parliament or the Executive wish to bring forward. This is a reinforcement of the fact that courts are expected to play a role, I would not say an active role, but a significant role in governance”, he emphasised.
‘Unless You Know What You Can Or Cannot Speak, It Is Very Easy For State To Criminalise’
Justice Bhat commended how, in the realm of free speech and other liberties, the Supreme Court has spoken on several issues several times- is a publication obscene, what constitutes an incitement that is likely to affect communal harmony, the extent of regulation permissible at any given point of time. “These are very important in governance because unless you know what you can speak and what you cannot speak, it is very easy for the State to criminalise any content! “, he said.
‘Reservation Cannot Be Done Away With So Long As Society Is Unequal’
Justice Bhat canvassed the 1992 judgment by nine judges of the Supreme Court in Indira Sawhney “as an elaborate discourse on the need to balance the right to equality with the aspirations of those who are in the most marginalised sections of the society and for whom the rule is the rule of reservation was brought in”.
“Reservation, atleast in regard to scheduled castes and scheduled tribes and most backward classes, is essential and we cannot put a time-limit on it. Speaking personally, I would say it is not possible that we should do away with it as long as society is unequal and people are socially and educationally backward! So long as the society is unwilling to cast-off the shackles of caste, these quotas are needed because they underline empowerment!”, he asserted.
‘Role of Election Commission Has Been Spectacular And Court Played A Supportive, Collaborative Role in Strengthening It’
Justice Bhat spoke of the role of the Court as a “supportive and collaborative institution” to strengthen the Election Commission as an arbiter of free and fair elections- “Election Commission has played a pivotal role in ensuring smooth, free and fair elections. If one goes back to the past and remembers how routinely, and in an endemic manner, we used to read about rigging during elections, the role of the Election Commission has been spectacular”
Justice Bhat discussed how where there are gaps of policies and no laws, there have been judicial interventions– Vishaka’s case, where guidelines for prevention of sexual harassment at workplace were laid down (‘The legitimacy of this rule-making can be seen by the law enacted by the Parliament against sexual harassment at workplaces in 2013‘, commented the judge); D. K. Basu on the criminal procedure to be followed for arrest, detention and interrogation (‘This has stood the test of time for the last 25 years, said Justice Bhat); guidelines for intercountry adoption in Laxmikant Pandey’s case; in protecting the environment, cultural heritage and ensuring institutional integrity; on administrative law, creating a culture of fairness in all decisions of the government and all those in power.
“Courts are corrective institutions falling back to the basic values in the nation’s Constitution. The judgements are part of ongoing interchange with other institutions of democratic government. In case their logic is sound, other wings readily accept it. If it is flawed or unworkable, other wings reverse it through legislation. Courts also correct themselves through overruling, narrowing the impact of previous judgements etc”, said the judge.
Justice Bhat explained that all courts choose normative, objective tools to support their conclusions and judgments; the weight given to precedent is important because the courts stress the legitimacy of their methods in the context of previous judgments. “Courts do not impulsively strike down laws or policies which are the result of layered and nuanced scrutiny. The role of the court is to see that the impact of the measure is rooted in the Constitution”, he said.
Justice Bhat said that the Executive’s policy formulation agency has vast powers and that the policy it proposes, to be embodied into law, is scrutinised by the Legislature by a bicameral process. “Any citizen can approach the High Court or Supreme Court when it is enacted on the grounds that it violates some provision of the Constitution. The court then decides this by adopting rules of interpretation, principles of proportionality, reading down etc”, he continued.
He elaborated that courts adopt two levels of scrutiny – low, threshold scrutiny, where the Executive is given the greatest latitude and play in the joints in making law in economic and commercial arenas; and the highest level of scrutiny, where the liberties of citizens are concerned, where the highest standards of reasonableness and non-arbitrariness are applied.
Justice Bhat said that courts are uniquely placed in the system of governance, that judges are not elected but they have the power, responsibility and duty to check the exercise of power by elected representatives, that rights and freedoms of people are protected and the power exercised by government in adopting policies is in line with the Constitution.
“The courts perform a gatekeeping function, we are in the nature of a watchman. The Constitution places the judiciary in a position to shape the practice of legitimacy and accountability in the government and other institutions. The role of the judiciary in governance can be seen in two ways- proactively protecting people’s fundamental rights in changing times and upholding core values of the Constitution, and bringing in fairness, transparency and accountability to the rule of law; and secondly, courts positively assist in governance, interpreting new-age laws and filling policy gaps in existing norms”, expressed Justice Bhat.
American and English Jurisdictions
Justice Bhat commended how several states in the USA had enacted legislation banning interracial marriage and how the US Supreme Court, in Loving v. State of Virginia, declared that the freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the State, and how this incrementally led to the freedom of choice.
He discussed the case of the United States v. Nixon– which dealt with the Watergate scandal tapes which President Richard Nixon refused to part with on the ground of privilege.
“The court in a unanimous decision held that tape recordings had sufficient likelihood in the trial that each of them contained conversation relevant to the offences charged. The court directed the President to release the tapes. This has a tremendous impact on contemporary society and new rights were created and new standards of accountability of power-holders in law were created”, explained Justice Bhat.
The judge hailed the judgment of the US Supreme Court in Youngstown Sheet where the Court limited the power of the President to seize private property- “It served as a check on the most far-reaching claim of Executive power and signalled the courts’ increasing willingness to interfere in political questions.”
Next, Justice Bhat commended the 2020 DACA case-
“There was a programme which provided a shield from deportation for two-year terms to nearly 8 lakh persons who had immigrated to the US as children. They were called ‘dreamers’. When the administration sought to wind down or give up this programme saying it was an illegitimate amnesty for non-citizens, the Supreme Court struck it down, holding that the agency had not complied with procedural requirements to give a reasoned explanation”
Finally, Justice Bhat praised the 2019 decision of the US SC in Department of Commerce v. New York where the Executive was asked to account for why citizenship was included as a question in the census exercise and which the administration had no answer to.
As regards the UK, the judge mentioned the famous Spycatcher case– a person had joined the British espionage service and during his employment, he was bound by the confidentiality agreement, preventing disclosure. After the spy retired and announced his decision to write a book, the UK government sued for injunction. “The court held that it would not help prevent the publication of information that throws light on past working of the government, that the disclosure itself will serve the public interest in keeping the community informed. So the value of transparency- that the citizen expects to know what its rulers do after they are elected- was underlined!”, commented Justice Bhat.
The judge also praised the 2019 judgment when the Boris Johnson government, just before negotiating Brexit, avoided Parliamentary questioning by proroguing the UK Parliament. “The court said that the issue concerns the right of citizens at large to be aware of what the government is doing. The Supreme Court, in a very swift judgment, ruled unanimously that the prorogation was unjustifiable and the order of prorogation was quashed. The court held that any action frustrating the ability of the Parliament to carry out its Constitutional functions would be null!”, remarked Justice Bhat.
‘I Am Proud To Be Hailing From Kasaragod And Kerala As A. K. Gopalan And Kesavanada Bharati Also Came From There’
Tracing the history of the evolution of the Constitutional law in the Supreme Court of India, Justice Bhat remarked,
“A. K. Gopalan, a very popular leader in Kerala, hailed from Kasaragod, from where I also come. Kasaragod has seen two important people who have defined Constitutional law- Gopalan and Kesavananda Bharati- and both happened to be residents of the district where my native place is situated. So, I am proud to be hailing from Kasaragod and from Kerala!”
The judge recalled what two judges of the Supreme Court had told him when he had been called to the bench and which has stayed with him till date and which struck him so much that he repeats it to all young judges-
“I was told that it is very good that I am joining the judiciary, but I should not think that I am the best as there will be 10 others who will be better than me. I was told that that is not even the point, and that having come here, I must make the best use of this opportunity and do what is right according to my conscience. What was said next has always stuck in my mind- that the court is the last stop, that justice is expected in a system by the government, by Parliament, by administrators and so on and so forth- Everybody has a right to expect justice, to expect fairness which is guaranteed to everybody in the democratic Constitution and when they don’t get it, we are the last door they knock. I was told that I must not turn away anyone without giving a hearing.”