Holme(s)ilies from the Bench

I read about the case of State of UP v. Jeet S. Bisht here (that blog also has links to the text of the judgment). The case discuses the powers of the Supreme Court to pass directions to rectify defects in the working and adminstration of various consumer fora under the Consumer Protection Act. Katju J. , grounding his reasoning in the doctrine of judicial restraint, argues that it is improper for the Court to do so. SInha J. took a contrary view relying on recent trends in judidical activism and what he calls a move away from formalistic approaches to the law. It is rare for a 2 judges of a Division Bench to disagree in this manner. My views are stated below. This post also appears as a comment on the lawandotherthings blog.

There is nothing really novel about the arguments put forward by Katju J. and Sinha J. Both philosophies have been espoused before by the Supreme Court, albeit not in a single case.

That said, I have grave misgivings about Sinha J.'s judgment, though I have the greatest respect for his erudition. I feel that it doesn't really answer any of the criticisms levelled by Katju J. It seems to rest on the following premises-

1. It is alright to ignore constitutional and statutory provisions as long as the parties before the Court connive with the Court in doing so. A sovereign legislature cannot abdicate its powers in this manner, and the mere fact that counsels before the Court were amenable to its passing directions is no defence to the charge that the orders passed were illegal.

2. As the Consumer Protection Tribunals are judicial fora, the SC is entitled to interfere in their administration and conditions of service as the apex court. There is no constitutional provision to bear this out. This is also ignores Parliament's contrary intention as exhibited in the text of the CPA.

3. Bunging in enough foreign references (Dworkin, Bruce Ackerman et al.) is sufficient to gloss over the fact that the Court is rewriting the statute.

Sinha J. also refers to Union of India v. S.B. Vohra, an inapposite reference, since the very passage he extracts indicates that there Art. 229 entitled the HC to have a say in service conditions.

References to other SC decisions which suffer from the same defects as those pointed out by Katju J. are of no help. Constitutional courts are normally not bound by prior precedents precisely because, in their field of action, the perpetuation of errors can have dire consequences.

I am not indifferent to the argument that legislative indolence requires judicial activism. I just don't think that it justifies rewriting constitutional and statutory provisions without acknowledging this is what is being done. It is constitutional hypocrisy, which abandons the constitution to the personal predilections of judges. This trend and it's pitfalls were eloquently characterised by Alex Kozinski of the Ninth Circuit in Silveira v. Llockyer> The passage deserves to be set out in full-

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States,389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional
guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."

Perhaps the present distribution of powers in the Constitution needs to be considered afresh in view of the degeneration of the legislative and executive organs. However, the judiciary should call for such a change openly rather than resorting to subterfuges and a creeping expropriation of legislative powers.

To end, I find Sinha J.'s criticism of Katju J. in para 43 unjustified. If the prior judgments, larger benches or not, were passed sub silentio, Katju J. was entitled to state his view. He should perhaps have considered having them placed beofre the CJ, in consequence of the view he was taking, that they may be reconsidered. As to Sinha J.'s judicial restraint jibe, perhaps he forgot that Katju J.'s brand of judicial restraint permits saying things like "people like you should be hanged from lamp posts" in open court.