Abishek Jebaraj and Srishti Agnihotri
Andy Mukherjee, a columnist, recently tweeted “Tomato will go to Supreme Court”. His tweet offered no explanation beyond referencing a news report about a Delhi market mandating fixed hours for the sale of vegetables and fruits as a measure to battle Covid-19.
Mukherjee’s tweet about the Tomato going to the Supreme Court soon garnered several hundred likes and appeared to be an obvious reference to the Indian Supreme Court’s docket being inundated with several petitions over the coronavirus pandemic. Faced with petitions seeking free testing for Indian citizens to petitions seeking repatriation of Indians stranded abroad to petitions seeking wages for affected migrant workers, one could mistake the Supreme Court of India for an Emergency Pandemic Task Force.
George Gadbois has described the Indian Supreme Court as one of the most powerful – if not the most powerful- Supreme Courts in the world. Two Articles in our Constitution fuel this expansive power. Article 32 allows citizens to directly seek redressal from the Supreme Court for the violation of their fundamental rights. Article 142 endows the Supreme Court with extraordinary powers to do “complete justice” in any matter before it. A comparison of the number of petitions over Covid-19 before the Indian Supreme Court and those before apex courts in other democracies may only strengthen Gadbois’s claim.
In most constitutional democracies, there is a separation of power between the judiciary, the executive and the legislature. Simply put, the executive governs by enforcing the law, the legislature enacts laws and the judiciary interprets or adjudicates the law. This constitutional construct is no different in principle, even in India.
When it comes to Article 32, the role of the Supreme Court is to fiercely protect the fundamental rights of those that seek its intervention. In the 1980s, the Court, through a series of rulings, innovated an expanded access to its Article 32 jurisdiction by allowing what is now well known as public interest litigation [PIL]. In a PIL, any concerned person [individual or entity] can move the Court in public interest seeking relief on behalf of any other class of persons whose fundamental rights have been violated by the state. For example, a spirited citizen can move a PIL on behalf of bonded labourers across the country, whose fundamental right to freedom of movement is being violated by exploitative labour in the stone quarrying industry. This form of PILs must remain in our constitutional scheme because they may be the only access to justice for persons like bonded labourers who are trapped in exploitation, often illiterate and without the financial means to access the court. We term such PILs where persons whose fundamental rights are violated have no access to the court as “pure form PILs”.
Another type of PILs soon developed where petitioners would move the Supreme Court to remedy public corruption or wrongs that the state was complicit in or turned a blind eye to. Examples of these are PILs filed over the 2G spectrum scam or those related to environmental protection, like reducing air pollution in Delhi. Here, the Petitioner along with other similarly placed citizens are all collectively aggrieved over the violation of their fundamental rights. Given that the Petitioner himself is also injured in these PILs we can call these “class action PILs”
If public interest litigation is a necessary vaccine to fight epidemic levels of injustice, it can come with serious side effects. Both “pure form PILs” and “class action PILs” have at times allowed the encroachment of the judiciary into the executive and legislative domain. For example, in Shyam Narayan Chouksey’s case the Supreme Court’s holding that every cinema hall must play the national anthem and people were to rise for it, was akin to legislating, however noble the directive may have been.
On rare occasions, the consequences of such judicial law making have been necessary to protect fundamental rights. In the case of Vishaka v. State of Rajasthan, the Supreme Court laid down guidelines for handling of cases of workplace sexual harassment, at a time where the legislature failed to enact a law on the subject. It was only in 2013 that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted by Parliament.
At other times, sweeping orders passed by the Court (such as in petitions to enforce telecom license dues) may have serious unintended ramifications on national economic interests. The Supreme Court’s hands on approach in overseeing the Assam – National Register of Citizens [NRC] process has also been critiqued as ‘taking over what is essentially an administrative process’.
PILs which result in unanticipated effects on our national life or transgress the separation of powers often stem from the Supreme Court’s oversight in consistently ascertaining foundational questions within our constitutional scheme. Quick-fixing public grievances without paying attention to these foundational questions leads to orders that are either ineffective or may cause unintended harm due to their unforeseen consequences. Here are those indispensable questions:
The first question of importance, often ignored, is whether the PIL involves a proximate violation of a fundamental right in some manner or the other? 
While the answer is not always easy, damage often arises when the Court intervenes in cases where there is absolutely no violation of fundamental rights. For example, the absence of a law mandating the singing of the national anthem at cinema halls violates no fundamental rights. A PIL in the Supreme Court seeking such a law would therefore be without merit. Similarly, before directing free Covid-19 testing for all citizens, the Court ought to consider if the denial of free testing to affluent individuals is a violation of their fundamental rights. If the relief sought in the PIL has no relation to fundamental rights, the Supreme Court may be best placed not to interfere. Even when under pressure, examining issues against fundamental rights before passing orders always helps the national interest.
If fundamental rights are in issue, the Court must subsequently proceed to examine if there is a law it must enforce or strike down or interpret to protect such rights? [Interpretation here may extend to giving life to gaps in the law to enable its working]. If there exists a law to enforce or strike down or interpret the SC must adjudicate the matter in a timely manner.
If there is no existing law to enforce in the case beforehand or set aside, the Court must stay with the following principles:
Principle 1: Pass directions [judge-made law or policy] only if unavoidable to prevent the violation of fundamental rights. In order to strike a balance between remaining aloof and supplanting the wisdom of the government, the Court must put the government probing questions to test the veracity of the facts involved. The Court [particularly in the field of Environmental Law], has often taken the help of expert bodies or set up expert committees to guide its orders in PILs . This approach can ensure that the Court is aware of the foreseeable consequences of its orders.
Principle 2: Hearing all stakeholders is key in passing directions to ensure that the Court is aware of all foreseeable consequences of its directions. One way in which stakeholders put their points across are intervention applications. The Court may also rely more actively on Amicus briefs filed by experts in the relevant area of law. Stakeholders need not only include business interest groups, but also advocacy groups, people’s collectives etc., that are impacted by the orders likely to be passed.
Principle 3: The Court must always keep in view that if interference is warranted, then acting in the quickest time possible is in the largest public interest.
Fast forward to the present crisis we find ourselves in – the Supreme Court has before it, an array of public interest cases related to the existing pandemic. Laudably, the Supreme Court has quickly adopted the use of video-conferencing technology to rise to the challenges of our times. The Supreme Court can also be celebrated for having been an upholder of people’s rights in a country mired with political corruption, poor governance systems, haphazard social mobilization and poverty. At the same time, we would be shortsighted to ignore that judicial overreach will ultimately create bad law, uncertainty in policy and a weak citizenry perpetually unengaged in the democratic process. The passage of unimplementable orders, which are divorced from constitutional issues might also result in eroding institutional legitimacy.
Not all the petitions before the Supreme Court during this pandemic invite judicial overreach nor does our Constitution confine our top court to the sidelines in a crisis. The Petition to ensure basic livelihood and food to all migrant workers during the lock-down is an opportunity for the Court to step in and prevent a violation of fundamental rights. The haunting picture of the desperate lone man on an Indian street lapping up spilt milk with dogs reminds us of the Supreme Court’s words in Francis Coralie that “the right to life does not mean mere animal existence”. The Supreme Court must play its role as the “sentinel on the qui vive” in protecting citizens’ fundamental rights. Judicial overreach leads to the tyranny of the unelected and judicial abdication unleashes the tyranny of the elected. Navigating the dangers of such tyranny and petitions by tomatoes is a tightrope walk, but the world’s most powerful Court in the world’s largest democracy must be equal to the task.
Abishek Jebaraj and Srishti Agnihotri are Advocates practising in the Supreme Court of India.
 Orders passed by the Supreme Court to enforce payment of telecom dues have been criticized on economic grounds: https://economictimes.indiatimes.com/industry/telecom/telecom-news/pil-filed-in-sc-against-dot-for-not-taking-coercive-action-on-agr-dues/articleshow/73608845.cms?from=mdr
 This question can also be extended to whether a constitutional right or constitutional provision has been violated, if the court wants to take a very liberal view of Article 32 jurisdiction.
 Creating a committee in perpetuity may be again encroaching on legislative or executive powers to create statutory bodies.