Tyranny of the unelected: It is time judges recognised the limits of their powers

·5-min read

Every modern democracy has three branches of government €" legislature which debates and passes laws, executive which implements laws and general measures of governance, and judiciary which interprets laws in disputes brought before it as well as decides on the constitutionality of those laws, occasionally striking them down.

And so that no one branch has unbridled and unchecked power as well as to avoid the three branches from invading each other's domains, the principle of 'separation of powers' has emerged. If the Parliament, for example, passes a law which is patently unconstitutional, a court of law can strike it down. If the Executive takes an action which is illegal in nature, the courts can act as the balancing factor.

But what happens when our courts ride roughshod over matters for which people of this country €" the voters €" have elected a government? What happens when actions taken by a government aren't held to be unconstitutional or illegal pursuant to any sound judicial rationale and analysis, but, in fact, the court imposes its will on a body elected to serve the will of the people?

There are two crucial words in the principle of separation of powers. What courts seem to have focused on lately is the last word therein €" power.

What is conveniently overlooked in the flurry of headline-making orders, judgments or observations is separation.

Moreover, the judges of high courts and the Supreme Court are unelected. They don't have to approach a constituency every five (or, at times, less) years to return back to their power. It is a collegium consisting of top five judges of the Supreme Court of India that appoints other judges.

Governance in a democracy with competing interests, harsh as it may sound, is a 24/7/365 trade-off. If a dam is needed to provide water for agricultural and consumption purposes, adjoining villages may be impacted. If industry needs to be set up to stimulate economic activity and create jobs, there may be an impact on the environment or land may need to be acquired by the government.

Even with the COVID-19 pandemic, a horrific crisis which has led to a massive infection spikes and deaths, there is a trade-off. While there may have been an overwhelming majority in favour of lockdowns last year, one year hence, an individual's right to livelihood is an interest which is now gaining ground as it competes with the right to life.

These decisions, indeed, aren't easy and have to be taken on the basis of the 'larger good' which, again, can be argued in multiple different ways. The efficacy, competence and alacrity of elected governments to these competing interests is precisely what determines whether they stay in power come the next election.

Why, then, should the judiciary enforce its will in deciding which competing interest wins? Judges don't have to wake up every morning to decide how they shall avail their next meal. The hawker earning his daily sustenance has to. And, if the government decides to curtail his liberty, it has to face that hawker in the next election to regain his favour by explaining to him the trade-off.

Yet, that is precisely what the Allahabad High Court stepped on when it effectively acted as the principal Opposition party, criticising the state of the medical emergency in Uttar Pradesh in order to "safeguard public interest". It was hearing a Public Interest Litigation (PIL) €" a tool that has largely deviated from its original purpose to provide legal justice to socially-disadvantaged parties to a political battlefield with attacks against the ruling government often receiving a judicial stamp.

The Allahabad High Court effectively ordered shutting down establishments, malls, stores, hotels, restaurants and educational institutions until 26 April in five major cities. The hawker we referred to earlier is only allowed to operate until 11 am. The HC added a threat that, while this is "nowhere close" to a complete lockdown (it, effectively, is), the Uttar Pradesh government must consider imposition of a complete lockdown in the entire state for at least two weeks.

Similarly, the Telangana High Court directed the Telangana government to issue COVID-19 guidelines to minimise footfall in stores, restaurants, marriage halls, cinemas and other crowded places, indicating that it would pass appropriate orders in the next hearing.

No provision of the Constitution was relied upon for these directions. No interpretation of a law. Quite simply, an expression of their will by the unelected lordships. Indeed, nothing to say about the fact that millions of cases involving parties with actual legal disputes which need interpretation of the law remain pending in courts throughout the country.

Indian democracy, the late Arun Jaitley said, cannot be a "tyranny of the unelected" that undermines the elected. That, he added, would result in a situation where democracy itself would be in danger.

Democracy provides several ways and means to check the executive's exercise of power. Media uproar, public protests and political opposition can often change the course of decisions sought to be taken by the executive. The judges needn't join unless there is an actual legal or constitutional dispute on offer.

How, for example, would Their Lordships deal with a situation where a government enforces its writ on how a court must interpret the provisions of the Indian Contract Act, 1872 in a judicial dispute between two private parties? Or, if the Ministry of Law were to pass a notification ordering the courts to adjudicate all pending disputes by a certain date?

It is time judges recognised the limits of their powers.

The author is an immigration lawyer who writes on current affairs, law and politics. Views expressed are personal

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