In many cases Supreme Court arrogated to itself the job that should normally be done by government. This kind of judicial excess violates court's mandate.

About a week ago, the Supreme Court decided to set up a social justice bench. Among other things, it gave the bench this brief: “To mention summarily about the release of surplus foodgrains lying in stocks for the use of people living in the drought-affected areas, to frame a fresh scheme for public distribution of foodgrains, to take steps to prevent untimely death of women and children for want of nutritious food, providing hygienic meal besides issues relating to children, to provide night shelter to (the) destitute and homeless, to provide medical facilities to all the citizens irrespective of their economic condition, to provide hygienic drinking water, to provide safety and secure living condition(s) for the fair gender who are forced into prostitution, etc.”

Who can disagree with these laudable social objectives?

The real question though is about the Supreme Court’s intentions in extending its mandate endlessly – especially into areas involving policy and its implementation.

If the highest court is going to chase black money, oversee criminal investigations directly, order the inter-linking of rivers, monitor the cleaning up of the Ganga, appoint all the judges of the court through its own opaque processes, decide what penalties should be levied on illegal coal block allocations, insist that 2G spectrum can only be sold by auction, decide how much food stock the centre should hold, etc, etc, why have a government at all? The Supreme Court should decide that the politicians elected by the people in this democracy are all incompetent and do the job itself. This is what it more or less did often when the UPA was in power; it can now make this explicit.

But these are the kinds of observations and orders the Supreme Court has been announcing regularly of late. While some of the orders may be borderline cases, some others are a clear violation of the separation of powers between executive, legislature and the judiciary. So one has to ask whether the court, whose job it is to protect the constitution, is in breach of it mandate in spirit if not in letter.

The Supreme Court’s job is to interpret the law and also ensure that the fundamental rights of citizens are not violated. It can strike down a law that it believes is not in keeping with the basic structure of the constitution, but it has no right to be dictating what laws the government should make, and how they should be implemented. Even if it has observations to make on how the government is faring, it has no business trying to second-guess the government’s options and insist that it alone will decide what is right and what is wrong.

It is not the job of an unelected judiciary to tie down the hands of an elected government in the name of social justice, anti-corruption or any other populist slogan.

Consider the kind of tendentious language included in the 2011 Supreme Court judgment that outlawed the Chhattisgarh government’s use of Salwa Judum irregulars to combat the Maoist menace. While the main judgment was certainly right, the court also made needless comments on economic policy. Among other things, it made caustic remarks against “amoral” government policies, “predatory capitalism” and the “culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology.”

How is it the Supreme Court’s job to tell any government whether it should follow neo-liberal or market-oriented or socialist policies? When the whole of India has been following so-called “neo-liberal” policies at least since 1991, the benefits of which have been obvious to everyone except *maybe) some of their lordships, how can it make such tendentious comments in its judgment?

In the more recent comments on black money, the Chief Justice of India, HL Dattu, went overboard when he asked the government why it was “trying to protect people having bank accounts in foreign countries….”. It further went on to tell the government not to do anything, as it will take over the black money probe: “You do not do anything. Just pass information of account holders to us and we will pass (an) order for further probe. We can't leave the issue of bringing back black money to government.”

Next day, the court had metaphorical egg on its face when it was discovered that the government had already passed on all information about the Swiss bank account-holders to the court-appointed Special Investigation Team (SIT).

But is it the court’s job to say we will chase black money, you (the government) should stay away?

Then again, consider what it said about the cleaning of the Ganga. It expressed no-confidence in the government’s ability to do the job, and said: “It is better if you can show us a PowerPoint presentation. Also, fix milestones so that we can assess the progress,” a bench of Justices TS Thakur and R. Banumathi, said earlier this year.

Or take the Subrata Roy case. The boss of the shadowy Sahara group has spent more than nine months in jail at the instance of the Supreme Court, but possibly without clarity on which law has put him there. If the general rule is bail and not jail for alleged offenders, why is Subrata Roy in jail, when his apparent crime was flouting of a Supreme Court order of August 2012, which asked him to repay Rs 24,000-and-odd crore to Sebi, to be refunded to bona fide investors in two illegal Sahara schemes. Is Roy in jail for contempt or court, or for his inability (or unwillingness) to pay Sebi? If it is for contempt, why didn’t the Supreme Court say so, and specify how long he will be there? And if it is for non-payment to Sebi, why hasn’t the court done anything to put the group under an administrator to liquidate the assets and recover the money?

Is the Supreme Court clear why it has put a man in jail for nine months without even an FIR being filed against him? Is it on the right side of the law, or is it merely using its judicial discretion to put someone in prison? (Note: This writer has always been critical of Roy’s attempts to defy the court, so we have no sympathy for his current troubles, but the issue is this: is the Supreme Court following the law or something else?)

In fact, where there was a clear case of contempt – as when lawyer Shanti Bhushan said in open court that eight of the 16 past chief justices of the Supreme Court were corrupt – the court sat still in embarrassed silence. This was a case of clear contempt, but the court simply did not have the courage of its convictions and send either of the two Bhushans, father Shanti and son Prashant, to jail for talking of judicial corruption in such stark terms. It did not even demand an apology.

It is difficult to escape the conclusion that the court did not want attention on corruption in the judiciary to take centre-stage and hence chose to maintain an embarrassed silence about it rather than salvage its reputation by taking the Bhushans to task.

Or take the Supreme Court’s collegium system – one of those rare systems in the world where judges appoint themselves through an opaque selection process. Articles 124 and 217 of the constitution say that judges to the Supreme Court will be appointed by the government (ie, the president) in consultation with the CJI. But the collegium system is the exact reverse: the judges decide who will be appointed judge, and the government just has to say yes.

Clearly, the collegium system is not in sync with what the constitution really mandates.

And now, by taking on a social justice agenda, the court will probably be foraying into more areas of policy when it has not fulfilled its more basic duty of speeding up the delivery of justice – which is clearly a social justice issue that should come well before issues like malnutrition and prostitution.

Over the last three years, the pendency of cases before the Supreme Court has not moved one bit downward, hovering between 64,000-66,000 in most months. But the court’s vacation system remains untouched by reform: it spends more than 90 days a year vacationing (not counting weekends and national holidays), including a massive 49 days of summer vacation this year. The Supreme Court does not work any more than the average primary school. Maybe, if the court cut down its own holidays, and stopped entertaining too many public interest litigations (PILs) in the name of social justice, it would deliver faster justice. Can one imagine any critical institution that vacations for a quarter of the year?

And, lastly, it is not as if the Supreme Court has been coming out in flying colours on the social justice agenda as well. In December 2013, a bench of the court overturned a progressive Delhi High Court judgment of 2009 which had struck down section 377 of the Indian Penal Code that made even consenting gay sex a crime. The court failed in its primary job of protecting the fundamental rights of citizens and found no “unconstitutionality” in section 377. It failed social justice when the issue was served up to it on a platter.

In the section 377 case, the Supreme Court was happy to lob the social hot potato back to the legislature. But in many other cases, where it had popular support, it was happy to take the job away from the executive and the legislature.

The Supreme Court needs to read the constitution again and clearly delineate matters that are in its ambit and those that are not. Over the last 25 years, when weak coalition governments were the norm, the court got into areas normally meant for the executive. Maybe, the executive was happy to leave difficult decisions to the court, possibly to escape political responsibility for the same.

But there is now a government with the mandate and the numbers to take decisions. It is time the Supreme Court focused on what it has to do and let the government do what it has the mandate to do.