February 21, 2020
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‘Supreme Court Order On Corruption Is Difficult To Support’

Former chief justice of the Supreme Court of India explains the thin line between overreach and intervention

‘Supreme Court Order On Corruption Is Difficult To Support’
Jitender gupta
‘Supreme Court Order On Corruption Is Difficult To Support’

Former chief justice of the Supreme Court of India, J.S. Verma, has often been identified with the judicial activism movement. But he has a caveat to add—judicial activism has to be legitimate. Verma’s views have to be seen in the context of recent orders passed by the apex court on Salwa Judum, black money and land acquisition that have left the legislature and the executive wondering if it does not impinge on the separation of powers. Justice Verma explains the thin line between overreach and intervention to Anuradha Raman. Excerpts:

Do you think the recent orders of the Supreme Court smack of judicial activism? Or are they timely judicial interventions?

Let me clarify what is legitimate judicial intervention. Judicial review is the basic feature of the Constitution and is beyond doubt. The judiciary is the guardian of the rule of law and the bedrock of democracy. But to keep every organ of democracy within delineated, legitimate control doesn’t meant that the judiciary can trample over the others. Self-restraint is called for, only then can the judiciary have the moral authority to deliver judgements.

On the issue of black money, not only has the court passed an order but also set up its own committee under two retired former SC judges....

The judiciary is required to oversee public authority and persons in public office and direct them to perform their functions when a case comes to court, not take over their functions. You make the authority perform but not take over and when you do so, you erode the separation of powers which is part of our political and constitutional scheme. The apex court has the power to issue mandamus under Article 132—asking the public authority to perform when it has failed to do so. But the article does not foresee a takeover of the functions. The judges’ job is adjudication and ensuring the implementation of rule of law.

But there is a provision for the advancement of mandamus with which you are associated?

In the now-well-known Jain hawala case, which I was presiding over, and which is mentioned in the recent order, we had said we will keep the matter pending (continuing mandamus) and direct the CBI to keep the court apprised of the investigation, which involved very influential people—finally leading to the prosecution of the PM. But we didn’t participate in the investigation. We merely monitored the case when a PIL was filed that the CBI was not investigating the case properly. We are not investigators, neither are we qualified to investigate. Judicial intervention is founded on an existing juristic principle or a newly developed juristic principle which becomes a part of law having precedent value for emulation in the future.

Which brings us back to the question: is the order of the Supreme Court on corruption a case of judicial overreach?

When I read the order, I found the precedents cited to justify it was the Jain hawala case. I was a little amused. I don’t think that is a valid reason. How can a retired judge be assumed to be the most competent authority to investigate? Moreover, it raises uncomfortable questions. The presence of a judge in the investigation might make the accused think the case is already weighed against him. I would not call it legitimate judicial intervention and if someone said it was judicial activism, I wouldn’t be able to contradict it. I find it difficult to support such an order.

You think the court should have stopped short of calling the CBI to report to it?

I would say the court should only monitor the investigations. Not take over the investigations. Also, I have a problem with the order on black money. Is it necessary for the order to explain in detail the economic policy of the country and its shortfalls? A large part of the order is obiter dictum (something said by a judge while giving judgement that is not essential to the decision of the case). In a judgement, one of the things to remember is it must not contain that which is not necessary for deciding the case. All the neo-liberal preface to the order was not required. Such an order can give rise to problems in future.

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