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Who’s guarding the sentinels?

In less than a week, the Supreme Court of India, by passing contradictory orders with respect to free testing has reduced the rule of law to a plaything.

S Subramanyam | New Delhi |

Louise Brandeis, a great American judge, while commenting on the judicial role said ‘the most important thing we do is to do nothing’. His statement is not one to be seen as cowering from responsibility but reflects an understanding of the judicial role which runs centrally across the globe. However, some Indian judges have been ensnared by the spirit of judicial overreach, which only weakens the institution and reduces its sanctity with every passing day.

In less than a week, the Supreme Court of India, by passing contradictory orders with respect to free testing has reduced the rule of law to a plaything. On 8 April, while hearing a Public Interest Litigation (Shashank Deo Sudhi v. Union of India & Ors.), a Bench of Justices Ashok Bhushan and Ravindra Bhat of the Supreme Court passed an interim order requiring that all private laboratories conducting Covid-19 tests do so free of cost, similar to government laboratories.

However, the bench did not decide on the aspect of whether the government would reimburse such costs to private labs. If that be the case, many private labs were put in a quandary as to the status of reimbursement, which only created confusion.

While passing such an interim direction, the Supreme Court had reasoned in the following manner: “The private Hospitals including Laboratories have an important role to play in containing the scale of pandemic by extending philanthropic services in the hour of national crisis.We thus are satisfied that the petitioner has made out a case for issuing a direction to the respondents to issue necessary direction to accredited private Labs to conduct free of cost Covid- 19 test.”

The rhetorical reasoning does not provide any strong base for sustaining the interim directions passed. Such an extremely socialistic measure neither reflects the constitutional aspirations nor provides a logical solution for the problem. The first problem with the legality of the order is that the Supreme Court seemingly assumed the role of a policy maker.

I should note that such an assumption of power is not a new phenomenon as, over the past two decades, Supreme Court has continuously stepped into the shoes of the Legislative and Executive, without realizing the impact of such incursions. In a rush to take popular measures, Supreme Court is opening its doors to criticism and interference. Unlike an legislative/executive organ backed by public support, the judiciary does not have such support, rather relies on individuals to take decisions.

In such a scenario, any decision which experiments with the delicate social and economic balance, will lead to consequences which may not be completely thought through. These interim directions were criticised by various legal experts, health professionals and industry experts in the meanwhile. Arghya Sengupta had observed ‘good intention gone awry’ and Kiran Mazumdar Shah stated ‘Humanitarian in intent but impractical to implement – I fear testing will plummet’.

This order had seen such sharp reactions that even the left ideologues found it hard to justify it. This order led to the filing of clarification petitions by some of the private laboratories before the Supreme Court. On 13 April, the Supreme Court modified its order to make free Covid testing for only the poor under the Ayushman Bharath Scheme or EWS Category.

Interestingly, the Ministry of Health and Family Welfare had on 4 April already notified that Covid testing for beneficiaries under the Scheme was free of cost. Therefore, the conclusion that one can derive from this show of judicial convolution is that the effect of the litigation did not yield anything, other than to restate and reaffirm what the Government had already done.

At this point should we just shut our eyes to the blatant overreach shown by the Supreme Court, considering that the Court has self-corrected, or should we delve deeper to analyse the reasons behind such indulgences shown by the Court? Courts in India do not subscribe to the general restraints shown by other constitutional Courts in the world. Alexander Hamilton, in Federalist No. 78, opined that the judiciary “has no influence over either the sword or the purse and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

However, if he would have been alive today, his views would have changed after having observed the kind of orders our Supreme Court is passing. The simple job of the judiciary is to adjudicate on the facts and to apply the law, rather than to create and supplant legislative wisdom. However, Indian Constitutional Courts have continued to pass legislative measures in the name of Public Interest Litigation. Such a phenomenon is a gradual development over the past four decades.

It is well known that ‘with great power comes greater responsibility’, but in a democracy constant ‘public scrutiny’ also comes along with assumption of such power. An institution which believes in enforcing its orders through obedience, suddenly has found itself to be fragile due to intense public scrutiny. Various recent issues such as the press conference by senior Supreme Court judges, graft allegations on a former Chief Justice etc., have all contributed in the creation of a deficit in public trust in the institution.

In this context, the Supreme Court now walks on a tight rope, wherein it needs to be cognizant of its limitations. A few years back, Justice Madan B. Lokur, while commenting on judicial overreach in Public Interest Litigation had wished those criticizing judicial adventurism with the phrase ‘C’est la vie’; however, such statement simply reflects the callous attitude of judges towards judicial discipline and lack of understanding of rule of law.

This writer agrees that such overstepping can be course corrected by the review mechanism; however, what cannot be corrected is that the institution stands naked and vulnerable, seeking affirmation from partisan elites and intelligentsia to sustain its populist orders. These qualities are generally seen in political institutions rather than the judiciary. Such orders ask larger questions of the sustainability of Constitutional Courts in India, their role and limitations. If judges are not cautious in the future in recognizing the limitations of judicial functioning, God forbid, the institution may suffer death by a thousand cuts.

(The writer is a practising advocate)