Why this Congress MP wants the Modi government to curb judicial overreach

Shantaram Naik, 71, a senior Congress leader from Goa, has been an MP for 17 years. He has headed the Parliamentary standing committee on law. Naik was in the news recently for writing to Union ministers Arun Jaitley and Ravi Shankar Prasad to place curbs on judicial overreach.

Judicial overreach has been a matter of national debate of late, triggered by cases such as the Supreme Court ordering cinema halls to play the national anthem, taking over the Parliament’s power to dismiss judges, acting as a film censor and taking up the duties of the Board of Control for Cricket in India.

Scroll.in spoke with Naik to find out why and how he seeks to curb judicial overreach, and what the implications of such a move would be. (The interview has been lightly edited and condensed for clarity.)

You have written a letter to Finance Minister Arun Jaitley and Law Minister Ravi Shankar Prasad about judicial overreach. What is this issue all about and why do you think judicial overreach is a matter we should be discussing?
I have raised several issues, starting with the Basic Structure doctrine. The Supreme Court in a judgement said there is a Basic Structure that the Constitution has: parliamentary democracy, secularism, etc. They also said the Basic Structure depends upon the case. They did not define what Basic Structure is, but whatever is a part of the Basic Structure cannot be altered. Since then this has become a watertight thing. Let us suppose – even though I am personally not in favour of this – that the Parliament wants to switch to a presidential system of government. It cannot since the Supreme Court will argue it affects the Basic Structure of the Indian Constitution. Therefore, I wrote to Arun Jaitleyji, with a copy to Law Minister Ravi Shankar Prasad, saying that this sort of judicial overreach started from the pronouncement of the theory of Basic Structure.

Now, I do not except anyone to touch the Basic Structure. It is a big issue and it is difficult to tackle. The Supreme Court has already said the Basic Structure cannot be changed. You will have to constitute a new Constituent Assembly.

Do you think the Constituent Assembly had the Basic Structure in mind when they were drafting the Constitution?
That is exactly what I am saying: Babasaheb Ambedkar never dreamt of the Constitution having a “basic structure”. Therefore, I ask: if Babasaheb did not dream of this thing how it is that judges, one fine day, discovered what they now call the Basic Structure?

But again, this is an issue to be discussed at the highest level and I do not even want to appeal to the government to even try and change that.

Some people would argue that the Basic Structure provides a check on the working of the government. Theoretically, then, if you remove the doctrine, won’t the check on the government go?
If that is so, then the founders of our Constitution would have discovered it themselves. They would have laid out what is required (as checks on the executive). It is not something that judges need to incorporate. Judges cannot write the law. Judges can only interpret the existing law. If there are any fallacies or ambiguities (in the law), judges can clear them using their interpretation. But judges cannot lay down a new law, that’s what my view is.

But I do agree with your point. When news of my letter got around, a friend phoned me, saying, “It is because the Basic Structure is there that we got saved. Otherwise, what the BJP would have done to us…”

I agreed with him but I am not looking at it from that point of view. If there was no Basic Structure, you can imagine what would happen. Anyway, I am clear that I am not asking for anybody to review the Basic Structure. I want that the judgements of the Supreme Court, which according to the government have encroached upon the powers of the Parliament, be identified by appointing a committee. Let this committee then study those judgement and then, to correct them, we can amend the Constitution or the law.

If a judgement has been passed in connection with a particular law, you have to respect that judgement. But nothing prevents the Parliament from amending that law in order to nullify that judgement. What is a judgement? It is simply an interpretation of a law. The courts decide the meaning of the law. But the Parliament, by amendment, can change the law, and thus change the meaning as laid out in the judgement.

Can you give some examples of where you think the judiciary has encroached upon the powers of the Parliament?
Let us take simple things. What children should eat for the mid-day meal is to be decided by the courts? How we should play cricket, who are to be the office-bearers of the cricket board is to be decided by the courts? How floods and droughts should be managed will be decided by the courts? In fact, we already have an excellent law on disaster management passed under the United Progressive Alliance regime. It is very structured. It has provisions for both national calamity funds as well as state calamity funds. Now the Supreme Court wants the Government of India to create another fund. This means they are interfering in the Budget. The courts cannot ask the government to create funds. Many a time they ask the lawyers representing the government – indirectly – to enact specific legislation. There are cases where the government had to produce draft legislation for the scrutiny of the court.

Can you give an example of where this has happened?
I would not like to. Ultimately, no one should haul me up or contempt.

One recent order that has been widely critcised for overreach is the one by Supreme Court compelling all liquor shops and bars within 500 metres of national and state highways to stop selling alcohol. Do you think this is an example of overreach?
In fact, this order was what prompted me to write that letter. How can the distance be decided by the Supreme Court? This is an action that is to be taken by the executive. That the judiciary is now deciding this is something I am having trouble understanding.

One important outcome of this is unemployment. Lakhs of people throughout the country are going to be unemployed by this Supreme Court order of bar closure. Therefore, in my opinion, the court did not have the right to do this. You can advise the government on anything, but you do not have the right to decide the distance of bars from the highway. The Supreme Court should think whether this falls under their realm.

Now the ball is in the government’s court. It has to decide what should be done when dealing with bars on national highways.

In Goa, if you start from Pernem, Mapusa, Panaji, Margao, Vasco da Gama, everywhere national highways pass through towns, where there are liquor bars on both sides. So you can imagine the scale of unemployment this order has caused.

Has Goa reclassified highways as district roads to circumvent the Supreme Court order as some other states have done?
Some thought was given to this, but it would be a foolish thing to do. Who will finance those district roads? No further money will come for their upkeep from the Centre. Tomorrow, they may decide that district roads are also covered under the order. So, that does not solve the problem. Instead, the central government should go again to the Supreme Court and plead the case, arguing that this does not fall in the realm of the judiciary. However, we will take your views into consideration and see what we can do.

What is the reaction of political parties to your demand? Your party, the Congress, the Bharatiya Janata Party, what do they have to say?
All are opposed to this (judicial overreach). In my 12 years as a Rajya Sabha MP, I have seen that this is a common complaint. Most politicians agree with my point.

Then why has no government raised the issue of judicial overreach?
Many MPs have when I have spoken to them individually. In private, politicians criticise judges heavily. The question is, who will bell the cat?

Now, there is a collegium system of appointing judges. But how did that come about? Through judgements of the Supreme Court itself. The courts, therefore, did not just interpret laws, they took powers away from the executive and the legislature by simply eradicating provisions. In the Constitution, there is a specific provision that gives the executive the power to appoint judges. Once fine day, though, the courts ruled that the collegium will decide.

The power of the government to appoint judges was taken away. But since governments have been weak, they have tolerated this all these years.

Now that there is a strong central government, do you think things will change?
Yes. In the Lok Sabha, the BJP has a clear majority. In the Rajya Sabha, I do not think it will be very difficult to come to a consensus on this matter. There might be some differences over the manner of judicial appointments but everyone will agree on this point: that judges appointing judges does not happen anywhere else in the world.

What we should have said is, restore the appointment system that was there in the beginning, whereby the powers were given to the executive (to appoint judges).