TARGET CORRUPTION: The apex court seems to be on a collision course with the executive in the cases of stud farm owner Hassan Ali Khan (top) and former CVC P.J. Thomas (below)

So you think India’s Supreme Court is overreaching itself and functioning like the executive branch of the state? You may, in fact, be pardoned if you believe that it is behaving like an unelected government. Last week, a newspaper quoted Justice A.K. Ganguly, a Supreme Court judge, saying at a public function that “the courts are widening their jurisdiction and are now functioning as institutions of governance and not merely as arbitrators of disputes.” He went on to call this a ‘transformation,’ raising eyebrows even in judicial circles.

That’s not all. Several recent incidents have set the judiciary on what appears to be a collision course with the executive. Consider some of these flashpoints:

The Supreme Court set aside the appointment of controversial Chief Vigilance Commissioner P.J. Thomas. Thomas has questioned the jurisdiction of the Supreme Court to do so.

A Supreme Court bench hearing a public interest litigation (PIL) on black money asked why Pune stud farm owner Hassan Ali Khan, facing charges of money laundering, should not be tried under anti-terror laws for his alleged links with arms dealers. The bench also suggested the setting up of a Special Investigating Team (SIT) to probe the trail of black money.

Another bench hearing the 2G spectrum scam directed the Central Bureau of Investigation (CBI) to show its final investigation report to the Supreme Court before filing it in a lower court.

But wait. Before you decide that the Supreme Court is really going far beyond its Constitutional mandate, note that the general consensus — among experts, that is — is quite to the contrary.

“There is some resentment from people affected by judgements, but by and large the feeling is that the judiciary is working within the Constitution,” says E.M.S. Natchiappan, senior lawyer and Congress MP in the Rajya Sabha. “This question comes up when the executive fails to discharge its responsibility,” says Nilotpal Basu, member, central committee of the Communist Party of India (Marxist).

“Why isn’t this question asked when television anchors berate the government every night on prime time news? At least the courts are constitutional bodies,” says legal academic Upendra Baxi.

The Constitution has clearly defined the roles of the three pillars of the state — the legislature is to pass laws, the executive to administer laws and the judiciary has to uphold the rule of law, though the power of judicial review puts it a notch above the other two. The judiciary has often been accused of using this edge to encroach on the turfs of both the executive and the legislature. For example, in 2005, the Delhi High Court issued notices to the government and the Lok Sabha Speaker, among others, on the expulsion of nine members of Parliament in the cash for queries scam. In 2006, the Supreme Court invited flak for advancing the date of a floor test in the Jharkhand Assembly and directing the Speaker to keep the proceedings peaceful.

That year, the apex court had also asked for the report of a parliamentary committee on implementing the reservation of seats in educational institutions for other backward classes to be given to it first. So exercised were politicians by this that the matter was even raised in Parliament by MPs from the Communist Party of India and the Bharatiya Janata Party.

Yet Baxi’s statement that “courts have exercised their powers with great restraint” finds many takers. The courts, points out Nirmala Sitharaman, BJP spokesperson, are not acting on their own but in response to writ petitions and PILs filed by private citizens seeking judicial intervention because the executive is not acting against corruption or misgovernance.

The 2G case came up before the Supreme Court after two petitions were filed by the Centre for Public Interest (CPIL) and eminent citizens as well as by Janata Party president Subramaniam Swamy. The CPIL and former election commissioner J.M. Lyngdoh challenged the appointment of the CVC through PILs. Lawyer-politician Ram Jethmalani, former director general of police, Punjab, K.P.S. Gill and former secretary-general of the Lok Sabha, Subhash Kashyap, filed the PIL on black money.

To be sure, it isn’t as if the judiciary has never crossed the line. “There have been cases of judicial transgression,” admits A.P. Shah, former chief justice of the Delhi High Court. But these, he insists are few and far between. Whenever this has happened, Basu points out, the judiciary itself has introspected and been circumspect. Constitutional expert P.P. Rao points out that there is a general decline in institutions. “Nobody is keeping within their defined boundaries. But relatively speaking, the number of transgressions by individual judges is far less than by other arms of the state.”

The judiciary, Shah argues, has only stepped in when a void is created by the inaction of either the legislature or the executive. Whether it was the issue of sexual harassment of women at the workplace or euthanasia, courts have laid down guidelines in the absence of a legal framework that should have been set in place by the executive and legislature. A PIL by a group of former bureaucrats, diplomats and police officers has asked the Supreme Court to direct the government to implement some civil service reforms that would depoliticise the bureaucracy. Approaching the court, the PIL says, was the last resort as the executive had failed to act on their demands.

“Only when one of the tripods of the state collapses and an imbalance sets in does one of the other two tripods steps in to ensure that the edifice remains stable,” says Basu.

The executive doesn’t complain when court decisions go in its favour even when they are not pro-poor like shifting slums from the banks of the Yamuna in Delhi, notes Baxi. The charge of overreaching rents the air only when the political class feels endangered — as in cases of corruption or executive inaction.

“If every government ensures people-oriented governance, there will be no need for people to go to court,” says Rao. There is, however, a problem when courts start overseeing administrative action, like the sealing drive against commercial establishments in residential colonies in Delhi. “When courts micro-manage administration, it affects regular work,” says Natchiappan.

The perception that the courts are overstepping their boundaries has arisen because of media reports — often taken out of context — on stray comments made and questions asked while a case is being heard in an open court. These remarks are often not part of the record and may not influence or be reflected in the final judgements. That’s why, says Baxi, judges should exercise discipline in making remarks at the early stage of hearings. To address this problem, Natchiappan suggests that judges’ observations be recorded and transcribed. “This will lead to less misunderstanding and tension.”

Can a confrontation be avoided? Yes, says Baxi. “If you don’t want judges to take the Constitution seriously, make the political class take it seriously.”

Now that’s easier said than done.