May 20, 2022
Good morning. In today’s either/view, we discuss Article 142 and judicial activism by the Supreme Court of India. We also look at the fuel shortages in Tripura, among other news.
📰 FEATURE STORY
Decoding the Use of Article 142 by the Supreme Court
In his farewell speech a few years back, outgoing Chief Justice of India Dipak Misra called the Indian judiciary the strongest in the world and said justice must have a human face. Time and again, India’s apex court has made headlines for its landmark rulings, putting the country on the right or wrong path depending on your ideology.
Most recently, the Supreme Court cited Article 142 and released AG Perarivalan, a suspect in the assassination of former Prime Minister Rajiv Gandhi. While activists pushing for his release and even Tamil Nadu Chief Minister MK Stalin himself welcomed the news, the Congress party wasn’t happy, perhaps understandably so. Is Article 142 and the court’s use of it a good form of judicial activism, or does it set a bad precedent?
First, a little bit about the case in question. AG Perarivalan, in prison for 31 years, was released after a Supreme Court order. At the time of the murder of former Prime Minister Rajiv Gandhi, he was 19 years old. He was accused of buying the two 9-volt batteries used in the bomb that killed the former PM and sixteen others. His legal battle has been long, but he maintained his innocence from the beginning.
After being captured in June 1991, a prolonged trial ensued. In 1998, he was sentenced to death by a Terrorist and Disruptive Activities Act (TADA) court. The following year, the Supreme Court upheld the sentence. In 2006, his autobiography titled An Appeal from the Death Row claimed he was implicated in a conspiracy by confessing under duress.
In 2013, Justice KT Thomas said hanging the convicts after 23 years would be unconstitutional. That same year, former CBI official V Thiagarajan revealed that he altered Perarivalan’s confession. In 2014, the apex court commuted his sentence to life imprisonment. This March, the court granted him bail after several petitions in the state court and from the Tamil Nadu government.
He questioned why it took so long for his bail since the Tamil Nadu government recommended remitting his sentence in 2018. The Tamil Nadu Governor delayed his decision. The long delay and the Governor’s hesitance to take a call on the pardon plea were the reasons cited by the court on why it invoked its constitutional powers under Article 142.
Concerning Article 142 of the constitution, it gives the Supreme Court the power to pass an order that it sees fit and necessary to ensure complete justice. Under the Government of India Act, 1935, there was no mechanism for carrying out its decisions. It could only issue a declaratory judgment. Concerning citing Article 142, even legislation can’t limit the court’s power.
In the case of DDA vs Skipper Construction Co., the court said it was better to leave Article 142’s power unregistered and undefined. This would ensure it can be moulded to fit different circumstances of any given case. Later, it also said it can’t be used to interfere in the legislative territory. A previous example of Article 142 being invoked was the court using it to ban the sale of alcohol along state and national highways.
When the court provides wider meaning and interpretation to expressions written in the constitution, it’s often considered judicial activism. Is this a good thing? Would it not be better for the court to just apply the pre-existing principles and legal rules in a case?
VIEW: Judicial activism ensures justice
Article 142 lends itself to judicial activism. It states giving power to the apex court to ensure complete justice. Constitutional lawyer and advocate KK Venugopal had lauded the Supreme Court’s judicial activism, saying it has done a lot of good. He said it helped underprivileged, disadvantaged, and illiterate sections of society.
Venugopal also cited Public Interest Litigations (PILs), which have played a role in the court’s judicial activism. The Supreme Court was more of a technocratic institution in its early years. Over time, it has slowly begun to become more active through constitutional interpretation. It generously interpreted the law and statutes. The role of judicial activism can’t be overlooked or negated since the proper implementation of fundamental rights could only become possible because of it.
In a democracy like India, things get messy quite often. Because of partisan politics, the legislature and executive can drag their feet on laws and other important matters that could affect the lives of citizens. Here, the role of judicial activism can’t be overlooked. The ultimate goal is to ensure complete justice, especially under Article 142. In the case of AG Perarivalan, he had the state government’s support. The court needed to ensure justice irrespective of the Governor’s delays.
COUNTERVIEW: Judicial restraint is necessary
Yes, invoking Article 142 has done some good. In the context of judicial activism, there needs to be some checks and balances. An approach would be to refer any judgment invoking Article 142 to a constitutional bench as KK Venugopal stated. He also said the government should also release a white paper on such cases to study their pros and cons after six months.
The primary concern is judicial overreach. The constitution has relatively well-defined boundaries to prevent encroachments by any of the three branches of government. In taking their oaths, judges are sworn to autonomy and independence. They should not be swayed by public opinion and only work per the law of the land. The judiciary should be cautious. As former Chief Justice of India, RC Lahoti, wrote, too much judicial activism can be counter-productive. It can obstruct the normal functioning of the other two branches.
Justice Lahoti cited the pandemic and the government’s response as an example of the media being biased against the current disposition and swaying public opinion. Coming back to PILs, they’ve been useful in enforcing the rights of the disadvantaged. However, they’ve become diluted and can interfere with the government’s functioning. In large part, judicial activism has been used as general supervisory jurisdiction to correct the government’s actions and policies. While checks and balances are important, there’s a danger of the court being reactionary.
What’s your opinion on this?
(Only subscribers can participate in polls)
a) Judicial activism through Article 142 is good as it has ensured justice.
b) Judicial activism through Article 142 is bad as it amounts to judicial overreach.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
Gyanvapi Mosque Row: Who Will Reap the Rewards in This Repeat of History?
For the Left:
Why Indians Should Be Allowed to Question the ‘Great Muslim Conqueror‘ Theory of History
🇮🇳 STATE OF THE STATES
Farmers end protests (Punjab) – Farmers in the state ended their protest after the AAP government accepted their demands in the wake of farmer bodies meeting with Chief Minister Bhagwant Mann. Mann announced a new schedule for staggered paddy sowing and restricted the number of zones to two instead of four. He also informed the farmers that the government will procure moong crops at an MSP of ₹7,275 per quintal.
Why it matters: After taking on the BJP-led Centre, farmers and farm groups turned their ire towards the AAP. They wanted MSP for several crops, including maize and moong, and for Basmati. They also wanted the arrest warrants against farmers who took out loans from cooperative societies to be cancelled and a waiver of loans of up to ₹2 lakh.
More liquor outlets (Kerala) – The state government has sanctioned more Kerala State Beverages Corporation (BEVCO) outlets to deal with the long lines at liquor shops. Earlier, 68 outlets were closed due to a phased liquor ban imposed by the UDF. These will now be reopened. BEVCO MD Shyam Sundar had earlier asked the government if they could open 175 new outlets. If approved, the state will get an additional 243 outlets, with the state’s total at 552.
Why it matters: Earlier this year, BEVCO reported a ₹1,608 crore loss. This was partly due to the closure of outlets within 500 metres of state and national highways per a Supreme Court order. These outlets weren’t relocated. Now, the High Court directed new shops to be opened on account of crowding at liquor shops. In Kerala, there are liquor shops every 100 sq km. In other states, it’s every 20 sq km.
Sale of red sanders (Odisha) – In the wake of the cyclone Titli that ravaged Odisha in 2018, the state looks to gain from the sale of red sandalwood felled by the cyclone. The government could earn ₹500 crores from their sale. The density of this wood is said to be more than that of other sandalwood and will likely get a higher price. The state has begun the process of e-tendering and an e-auction sale of more than 800 tonnes of it.
Why it matters: Last year, the Centre relaxed the export rules for the state to sell the wood. The Forest department will form a committee that will look at the global market for the wood. Some officials say the expected value of high-grade red sanders can cross ₹1 crore per tonne in the international market. Red sanders are also included in the endangered category of the International Union for Conservation of Nature’s (IUCN) Red List.
More floor area ratio (Goa) – The government has decided to increase the floor area ratio (FAR) for three- and four-star hotels in the state. Earlier, this applied to only five-star hotels. The decision was welcomed by the Travel and Tourism Association of Goa (TTAG). The government warned that hotels should take note of the state’s ecology while increasing their footprint and the rule shouldn’t be applied without care.
Why it matters: This decision will help bring in more revenue for the government and cut down on illegal extensions. As the pandemic hit India, the state’s tourism sector suffered. Smaller hotels were especially affected. Now they are looking to sustainable tourism with tourists coming to the state with increased spending capacity.
Rationing fuel (Tripura) – The Tripura government has decided to ration petrol and diesel amid a fuel crisis in the state. The state government has mandated that two-wheeler owners can get only ₹200 worth of fuel in a day. For three and four-wheeler owners, it’s capped at ₹300 and ₹1,000, respectively. Across the state, people lined up at petrol pumps. LH Darlong, principal secretary to Tripura transport department, said petrol and diesel stocks will last for only a week.
Why it matters: The shortage is due to the rains and floods in Assam that have damaged tracks. Landslides have damaged the National Highway which has blocked the supply of fuel from coming in. Rail connectivity has also been affected with states across the region. Amidst the crisis, the Indian Oil Corporation (IOC) has also rationed fuel supply to ensure stocks last.
🔢 KEY NUMBER
8.9% – The projected increase in the salaries of Indian executives in 2022. According to Aon’s 11th annual Executive rewards Survey, the hike will be the highest in five years.