Constitutional Courts Cannot Sit With Folded Hands When Executive Fails to Perform Its Duties : Justice BR Gavai

In his recent lecture at Harvard Kenedy School, Justice Gavai spoke extensively on the theme “How Judicial Review Shapes Policy”. 

Justice Gavai, through his insights highlighted the Indian Judiciary's continuous efforts in upholding the ideals of constitutionalism when the executive branch of the government falls back in fulfilling its duties. 

 "The judiciary in India has repeatedly demonstrated that our constitutional courts cannot sit with folded hands when the executive fails to perform its duties."  

"Every now and then, the government and its instrumentalities are making decisions affecting the rights of individuals in a large number of cases.

Therefore, it is all the more crucial for all the administrative authorities to make a decision while acting judicially. This is because the court may go into the validity and constitutionality of decisions made by the executive."

Justice Gavai explained that in the Indian legal framework, judicial review has evolved new constitutional mechanisms to ensure that the Indian Constitution works as a “living document” which moulds itself to the changing needs and desires of the upcoming generations.  Giving the example of evolution of Public Interest Litigation (PIL) in India, Justice Gavai illustrated the novel mechanisms that Judiciary has come up with to uphold the rights of the citizens and level playing policies. 

 Time and again, the demand for judicial interventions has been triggered by the constant incoherence in the realm of policy-making, as well as the need for developing and strengthening skills amongst the executive instrumentalities. Social Action Litigation (SAL) is promoted in the U.S.A. to provide justice to the masses. In India, it is known as Public Interest Litigation (PIL) — often characterized as a device for a collaborative problem-solving approach. Under PIL, the Supreme Court of India diluted the traditional criterion of 'locus standi'. It enabled any public-spirited citizen to approach the Court for espousing the grievances of marginalized sections of the society who on account of their social and economic disadvantages could not approach the Court.

Justice Gavai substantiated this by giving contemporary examples of the recent ruling of the Supreme Court which shaped the public policy relating to elections, voter rights and strengthened the democratic values. These included the recent decision of the Apex Court in striking down the 'electoral bond scheme' ; introduction of the new ballot design 'NOTA' wherein the voters express a right to reject all candidates in an election (People's Union for Civil Liberties v Union of India) and accurate disclosure by election candidates regarding criminal background, financial assets etc (Union of India v. Association for Democratic Reform). 

Judicial Review Of Administrative Action - Examples Of Impact 

Through judicial review, the judiciary has the power to assess the decisions and actions taken by government officials and bodies. The primary objective of this process is ensuring that these rulings are in harmony with the constitution and do not negatively impact the populace. Should a decision made by the government be deemed unjust or illogical, the judiciary has the authority to intervene and rectify the situation.

One famous case mentioned by Justice Gavai, Tata Cellular v. Union of India, showed how the Supreme Court reviewed the government's tender processes. The court said it would review government decisions if they exceeded their powers, were unfair, violated basic fairness rules, or were illegal. However, the court also noted it must be careful not to overstep, ensuring its review does not limit its oversight too much.  

The courts have time and again corrected administrative actions that were biased or improper. In one notable case, Union of India v. Ex. Lt. Selina John, the Supreme Court ruled against a policy that unfairly penalized a female military nursing officer for getting married, stating that laws cannot be arbitrarily based on gender bias. The Court had directed the Union to pay the officer compensation worth Rs. 60,00,000/-. 

In the case of Vikash Kumar v. Union Public Service Commission, the Supreme Court has permitted a candidate suffering from a writing impairment to use a scribe during examinations, thereby extending the availability of accommodations for individuals with disabilities. It was determined by the Supreme Court that the option of a scribe should be made available to those persons with disabilities, not just restricted to those with benchmark disabilities.

Dialogical Judicial Review: A Conversation for Change

Justice Gavai brought up a fascinating concept known as "dialogical judicial review." This notion entails a discussion between the judiciary, the government, and those impacted by governmental actions. Through this conversational process, governments are required to justify their decisions, and the judiciary may recommend modifications to promote justice and responsibility.

" The dialogue acts as a means between the parties, which enables them to correct their decision. It also helps the courts ensure transparency and accountability."

During  the health crisis brought on by COVID-19, Justice Gavai outlined how such a method was critical in ensuring the government's decisions regarding the distribution of healthcare resources and vaccines were done with fairness and openness. The judiciary's involvement led to the modification of policies for the enhanced protection of civil liberties, even amidst a medical crisis.

"To cater to the ground realities on the availability of oxygen and vaccines, the Supreme Court engaged in a dialogue with the Union government, allowing them to explain the reasons behind its actions while observing due deference. Having a dialogue primarily serves two-fold purposes, firstly it ensures transparency by ensuring that the decision does not remain opaque, and secondly, the Court assumes a position to subject the authorities to judicial review under the established constitutional law norms.

Instead of making policy decisions on its own, the constitutional courts relied on the device to specifically ask the reason based on which the government and its instrumentalities took a particular stand, be it fixing rates of remuneration of private hospitals, the supply of oxygen, medical infrastructure, supply of medical drugs, vaccination, etc.The government's revision of the vaccination policy was the perfect example of how the Court's intervention through a dialogic judicial review led to uniform vaccination pricing. " 

Through the Covid Crisis example, Justice Gavai underscored the effectiveness of dialogue as a tool for a judge to conjointly understand the social challenges in implementation of welfare policies by the government and interactively suggest solutions which the government could consider adopting. 

The Court's mission extends beyond just interpreting the language of the law in a vacuum and striking down legislation or administrative activities that are inconsistent with the Constitution. It shall also extend to remedying the situation at hand by issuing frequent directives and prescribing correct recourse that political branches need to do to meet constitutional standards. 

The Last Word - Justice Gavai Concludes 

Justice Gavai highlighted that the practice of judicial review is not unique to India but is also a universally acknowledged procedure. This process enables courts around the globe to monitor the application of constitutions and to verify that the laws align with constitutional freedoms. Although the courts do not create policies, their rulings often direct or sway governmental actions for the betterment of the public and to protect constitutional ideals.

He explained, " An American legal scholar, Tom Ginsberg, has argued that “Constitutional review, the ability of judges to supervise the constitution, has spread around the world in recent decades. By our account, some 38% of all constitutional systems had constitutional review in 1951; by 2011, 83% of the world's constitutions had given courts the power to supervise the implementation of the constitution and to set aside legislation for constitutional incompatibility”

Through his lecture, Justice Gavai emphasized the crucial function of the judiciary in achieving an equilibrium between governmental measures and constitutional liberties. By scrutinizing administrative rulings, judiciary makes sure that policies are beneficial for the populace and conform to the principles of the constitution as well as human dignity. As civilizations progress, so does the scope of judicial review, which now covers emerging rights and difficulties, showcasing its persistent relevance in the arena of democratic rule.

The Supreme Court Justice ended the lecture by quoting Chief Justice Marshall,

" To conclude, I would like to quote Chief Justice Marshall, who once said: “We must never forget that it is a constitution we are expounding on. A constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”