July 11, 2011

Nandini Sunder v Union of India (SPO Case) : Not just Fundamental Rights to discuss, Are we forgetting Separation of Powers?

“Our Constitution charges the various organs of the state with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation…. powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that such power is being used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the state are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the government in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the state may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the government; but restraint cannot imply abdication of the responsibility of walking on that edge.”[1]

Nandini Sunder is one of the finest examples of the extent to which the Supreme Court of India can spread their legs in policy matters. The Supreme Court decision in this matter not only struck down a policy of Government as unconstitutional, but observed the dimensions of such policy indicating how a law ought to be. The Supreme Court in the decision feared the criticism on the excessive spread in the matter of policy by the jurist, but justified the same with the quote from a recent decision of Supreme Court in the matter of GVK Industries and the argument that the Court has to move on "edged razors" for the Constitution.

Supreme Court struck down Section 9 of the Chhattisgarh Police Act and Section 18 of the Indian Police Act in violation of the Article 14, 21 and 355 of the Indian Constitution. Court held that the no sovereign can take this argument that insufficiency of the resources are putting the citizen of the country and justifying the violation of the Fundamental Rights. Court also said that the funding of Union to State of Chhattisgarh for the act which is unconstitutional is violative of Article 355 of the Constitution.

The Apex Court remained concerned about the after security issues of the Special police Officers while issuing the orders for disarmament and ordered for the appropriate measures by the State of Chhattisgarh on the issue of security after disarmament.

Court observed following:
1. The discipline of the Constitutionalism is accountability of power whereby the power of the people vested in any organ of state, and its agent, can only be used for promotion of constitutional values and vision.
2. The appointment of the SPOs is dehumanizing in the nature and doesn’t propagate the Constitutional values in any respect.
3. The Court also condemned the “privatization” and “political economy” of the country and took a very socialistic view in the decision throughout. The Court, however, didn’t talk about the distribution of resources among the citizen for equal opportunities. Holds privatization policy as cause of the Maoist problem together with the financial imbalances in the country.

4. Court  also observed that the unrest in democracy is the true indicator of democracy. Only unrest can suggest that the Government has to perform well as citizens want it. The repression of the unrest is undemocratic in nature.
5. Court mentioned, Corporate and multinationals as one of others who are responsible for the situation in the Chhattisgarh. In my view, these were untenable statements and Court shouldn’t decide what is not good and leave it for the legislature. Court ought to do it is not good according to Constitution or Law, and shouldn’t enter into this other domain[2]. Court well went into the problem solution mode of the governance which is not its area of concern[3]. Court also condemned the tax subsidies etc. to private party which is again not its domain of analysis. I think the citizen representatives are best to decide upon what and how much tax should one be paying and who all should be exempted. Strictly not the matter to be discussed by a Court.

Giving refute on the MNCs and Economic Policy of government, I must say Court leaped a step forward to forbidden area of policy making. This further would bring biasness in attitude of Apex Court.
Court found section 9 of Chhattisgarh Police Act and Section 18 of the Indian police Act as the violative of Article 14 and 21 of the Constitution. Court backfired on the argument from the Chhattisgarh that they are providing them the employment. Court stated that the necessary education of the SPO is till the 5th standard and they won’t know how and when to use a weapon up to its best capacity. Court further stated that the claim of Chhattisgarh that the SPO are taught with the principles of Human Rights and Cr.PC and Evidence Act is also devoid of credibility as these subjects require a minimum of the background education. Court stated that how would a SPO know that what is self defense and when does it start (On the argument that firearms are provided for their self defense). It is intricate matters of law which requires a level of intellectual capacity that these SPO (5th standard pass out or lower) can't posses. Court held this as violative of Article 21 of the Constitution as these unskilled SPO are put into front with less and almost no effective training that has resulted into higher ratio of casualty than the Police force.

Court, on the argument of the Chhattisgarh that the SPO are given same level of rank as that of the Police Officer, asked the question on the discrimination on the level of salary. The Salary of SPOs is less than one-third of the regular police officer. Court held that, further the regular force are more skilled in the training and knowledge of weaponry for the front than these SPOs, this is violative of Article 14 of the Constitution.
Whereas the decision is very learning, Court indeed jumped few hoops. The criticism is following, and if continues, in a long run, it might be catastrophic. We must understand that the three branches (Judiciary, Executive and Legislature) are equally powerful and they sustain together because they respect each other’s domain.

Taking separation of power on a lighter concern, yet another fine decision from one of the most dynamic Courts of the world.

[1] G.V.K. Industries v. ITO, 2011 4SCC 36
[2] Pg 11-15
[3] Pg 18


P.Kumar said...

The problems with your assessment are two fold. Your understanding of what a "policy" is. Ultimately, a policy chosen by the executive or the legislature, can be acted upon only by treating it as a law. Every law, under Article 12 and 13 of the Constitution are subject to Judicial Review (barring the few exceptions carved out by amending excesses of Indira Gandhi years), and if found violative of fundamental rights, can be struck down. So, the choice of tackling Maoist insurgency by using illiterate/barely literate tribal youth, by arming them with AK 47's, was struck down by the Court as unconstitutional. The second problem with your argument is with regard to the court's examination of ideology of political economy that informs the current development paradigm. The choices made, policy wise, are influenced by particular world visions, as well as a choice of costs and benefits of such a policy choice. So long as the consequences are within constitutional permissibility, the courts ought not to interfere. However, when those policy choices lead to violation of fundamental rights, especially on a large scale, leading to the very disintegration of social structures, the Court is duty bound to step in. After all, the Preamble promises dignity, fraternity and integrity of the nation (which means the people of the nation). To suggest that the Courts cannot dissect the consequences of a policy, or trace the visible consequences in the society to policy framework is to ask the Court to be blind to social realities. That is knee jerk legal positivism, and silly. The Constitution clearly recognizes that fundamental rights have both negative and positive content (as held by many constitutional benches). The refusal of the state to act in a manner that is remotely connected to its positive obligations, of protecting citizens from depredations of their human dignity and preventing conditions of fratricide arising amidst them, the Court has to necessarily step in. It is idiocy to say that our Constitution does not mandate that.

Vivek Ranjan said...

Dear Mr. Kumar,

Thanks for caring to read this piece of writing. I guess I was not able to present what i wanted to express. I am completely on the same stage as you for the understanding of policy and agree with you to the most. However, if we go through the judgement, Court has expressed its dismay over the law not just on the basis of Constitution but on approach of government as well. Court has refuted MNCs incorporation into the economy and has judged the law on grounds it must not acquire and sometimes even on pure policy making grounds. As the observations are not binding, still we have history of obiters taking shape of ratios. However i understand that this might not be the right time to take it this far. But my observations are just indications of approach of Apex Court. I am afraid some of the similar observations could be found in Ram Jethmalani and Others v Union of India. What i meant in the blog is that Court must not poke its nose on the matter which are purely political in nature, like approach of Govt towards economy or its decisions to open the economy. That is certainly not the domain of Court and Court cant question the competence or intention of legislature directly or indirectly. The essence of democracy is the decisions by representative of citizens unless it extends to demolition of BSD (India and Germany for instance).
Hope I am able to explain myself.