Over the last few months, Elon Musk, the owner of X Corp, SpaceX and Tesla has been at loggerheads with the all powerful Brazilian judge Alexandre de Moraes after the latter banned X in Brazil. Recently, Brazil Supreme Court Judge Alexandre de Moraes ordered the freezing of Starlink’s finances and barred the company from undertaking financial operations in Brazil “to guarantee the payment of fines” imposed by the court on X. It all started in April this year when Moraes initiated an investigation into the entrepreneur after Elon Musk stated that he would reinstate accounts on the social media site X that the judge had disabled.
Musk contended that restricting the said X accounts was “unconstitutional”. As reported earlier, Moraes had said that if X failed to block the accounts of a Brazilian senator and a 16-year-old girl among others, the social media platform would be fined 100,000 reais ($19,740) every day. Since then, the tussle has intensified. It must be noted that de Moraes is said to be close to the Brazilian President and leftist leader Luiz Inácio Lula da Silva. While the Musk versus Moraes conflict is centred in Brazil, it has sparked a global debate over the judges being too powerful and judicial overreach.
The judiciary becoming more powerful than the elected legislative: what can it mean
The Musk versus Moraes dispute raises concerns in the Indian context about judicial overreach and the risks excessively powerful judges pose in a democracy. Before moving ahead, it is pertinent to understand what exactly the term “judicial overreach” means. Judicial overreach happens when the courts or individual judges transgress beyond their constitutional jurisdiction by intervening in issues generally reserved for the legislative or executive branches. Judicial overreach occurs when courts or individual judges go overboard in their judicial activism. There have been several instances when the Indian courts and judges went beyond their jurisdiction and decided on matters which should have been handled by the legislature or the executive branches of democracy.
In March this year, the Supreme Court agreed to hear a plea challenging the appointment of Sukhbir Singh Sandhu and Gyanesh Kumar as Election Commissioners in addition to the Chief Election Commissioner. The plea was moved by an NGO represented by lawyer Prashant Bhushan. The plea sought that not only the Judiciary should look at the appointment of the current Election Commissioner, but rather should also become a party to the selection of another constitutional body. It was contended in the plea that the appointment of Sandhu and Kumar countermanded the Supreme Court ruling by replacing the Chief Justice of India on the high-level selection committee with a Union Minister of the Central government’s choice. The apex court, however, refused to stay the appointments saying the general elections were about to be held.
The Supreme Court ruling on the appointment of the Chief Election Commissioner sparked an outcry from the people. The top court’s interference in the matter apparently violated the concept of separation of powers as envisaged in the Constitution. The Supreme Court, under the guise of establishing neutrality within the election commission, interfered with the jurisdiction of elected legislators.
Supreme Court on 2021 farm laws and the farmers protest
Another SC ruling that reeked of judicial overreach was that of reprimanding the Central government over the 2021 Farmers’ Protest. The Supreme Court stayed the implementation of the three farm laws, taking into account only one state’s farmer protests while ignoring other aspects of the matter. Moreover, the apex court ignored the blockade of railway tracks and tolls in Punjab as well as a national highway.
During the hearing of this matter, several observations were made by the Supreme Court bench led by the then CJI N.V. Ramana. The then CJI told the Solicitor General that they had not received any petition saying that the three farm laws were good. The CJI said this when the Solicitor General informed the court that several farmer organisations told the government that they had no difficulty and found the three farm laws progressive.
Interestingly, a year after the three farm laws were scrapped, a Supreme Court-appointed committee submitted its report which said that of 73 farmers’ unions, 61 supported the scrapped laws.
Supreme Court’s problematic observations in the Nupur Sharma case
A major outrage had erupted on social media over the observations made by the Supreme Court during a hearing in which a former BJP spokesperson requested that the FIRs against her for comments on one of the news debates in 2022 on the issue of Gyanvapi structure be clubbed.
“Her loose tongue has set the entire country on fire. She is single-handedly responsible for what is happening in the country,” Justice Suryakant said lambasting Nupur Sharma instead of criticising the jihadi mobs which raised “Sar tan se juda” slogans and carried out violence and arson across the country. The court not only pinned the entire blame on Nupur Sharma for the 2022 riots and violence unleashed by Jihadis but also ignored the derogatory remarks the other debate panellist Tasleem Rehmani made about Hindu Gods. Sadly, the oral observations made by the court, in a way granted legitimacy to the mobs who called for beheading Sharma over perceived ‘blasphemy’.
Supreme Court banned liquor shops near national highways
Back in December 2016, the Supreme Court directed that no more liquor licenses could be granted along national and state highways within 500 meters of the highway’s outside edge or service lane. The direction was issued on a plea filed by a road safety activist and did not take into account the economic repercussions. Although the intent was good, the SC ruling was an interference in the purview of the state governments.
Supreme Court verdict on Sabarimala temple
In 2018, the Supreme Court of India decreed that women of all ages should be allowed entry into the Sabarimala Temple in Kerala. CJI Deepak Mishra, reading out the verdict, stated that women are in no way inferior to men and relationship with God cannot be defined by biological and physiological factors. 4 judges of the bench had a similar opinion while, the only female judge on the bench, Justice Indu Malhotra had a dissenting opinion. By this verdict, the apex court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricted the entry of women between the ages of 10 and 50 into the Sabarimala Temple.
This was a clear case of judicial overreach. The apex court should not have agreed to even hear the plea challenging the ban on entry of women between the 15 to 50 age group as the presiding deity of the Sabarimala Temple, Lord Ayappa is a celibate and the matter was internal issue of a Hindu place of worship based on faith. The SC verdict gave primacy to the concepts of ‘rationality’ and ‘equality’ over the essential practice of the temple being followed for centuries. CJI DY Chandrachud has even invoked patriarchy saying that the ban on women in Sabarimala Temple was an extension of the patriarchal mindset. However, as the dissenting judge, Indu Malhotra opined: “notions of rationality are impervious to religion”.
Supreme Court set 2-hour window for bursting firecrackers on Diwali
Despite the lack of a legal basis, the Supreme Court fixed timings for firing off fireworks during Diwali in 2018 and prohibited the use of non-eco-friendly fireworks. The court had set a 2-hour window for the Hindus across the country to burst firecrackers on Diwali.
In 2019, the Delhi court convicted a man for bursting firecrackers on the night of Diwali violating the prescribed time limit declared by the Supreme Court. Additional Chief Metropolitan Magistrate Jitendra Singh has convicted Old Delhi resident Mayank Singh who was bursting crackers on November 7, 2018, beyond 10 PM.
A person named Mayank was bursting crackers at Paharganj. The Delhi police had warned him to stop bursting crackers as it was in violation of the orders of the Supreme Court. However, Mayank had continued to burst crackers on the occasion of the Hindu festival Diwali. The Delhi police had booked him under Section 188 CrPC for disobeying their orders by continuing to burst crackers despite issuing a warning.
While Mayank Singh’s conviction cannot be deemed judicial overreach, the ruling raised concern over the court’s priorities. While lakhs of cases are pending, the court considered it important to penalise a common for bursting crackers on Diwali. The courts sometimes hear random PILs on priority instead of the more crucial matters. No wonder, it took three decades for the courts to punish the culprits of the 1992 Ajmer blackmail and gang rape case.
SC crossed its mandate by striking down Yogi government’s nameplate display order on the Kanwar Yatra route
In July this year, the BJP government in Uttar Pradesh ruled that vendors, hotel and shop owners will have to display the name of the proprietors on the Kanwar Yatra route to ensure that Kanwar Yatris can uphold their Satvic dietary preferences. As OpIndia reported earlier, there have been numerous incidents wherein Muslim vendors were found to be operating shops with Hindu names or those named after Hindu deities while concealing their Muslim identity thus misleading the customers, especially the Kanwar Yatris. In no time, the Islamists and their sympathisers were outraged and the matter reached the Supreme Court. While matters of religious concerns, public health, law and order, are purely a subject matter of State policy, the apex court struck down the Yogi government’s directive.
The Collegium
As if the verdict in the 1991 K Veeraswami case, which gave greater immunity to the judges of High Courts and the Supreme Court was not enough, the apex court had in 2015 struck down the National Judicial Appointments Commission (NJAC) Act. Immediately after coming to power for the first time, the Modi government passed the 99th Amendment of the Constitution and the National Judicial Appointments Commission bill in the parliament in August 2014, to set up the National Judicial Appointments Commission (NJAC). This was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. But in October 2015 the bill was struck down by the Supreme Court of India declaring it unconstitutional. Besides, judicial overreach, the honourable courts have also done everything to protect their turf.
Back in 2019, Justice Rang Nath Pandey of Allahabad High Court’s Lucknow Bench had written to Prime Minister Narendra Modi raising concerns over the collegium system. Justice Pandey alleged that the only criteria for the appointment of judges in the Collegium system were casteism and nepotism. He alleged that merely being a member of the family of a judge ensures one’s appointment as the next judge. Justice Pandey even raised questions over the competency of judges and said that in some cases judges lack the basic knowledge of the law. He alleged that appointments under the Collegium system are made on the basis of favouritism.
Interestingly, while the politicians are required to declare their assets when they contest elections the judges or High Court or Supreme Court are not essentially required by law to make similar disclosures during their appointment, thus, leaving the citizens with a skewed idea of whether a particular judge or judges are corrupt or not. In February this year, it was reported that the Modi government was planning to make it mandatory for judges to declare assets.
Judicial supremacy over parliamentary sovereignty
India is a parliamentary democracy, with the legislature representing the will of the people. However, when judges often overturn legislatively passed laws or impose their own judgements on policy matters, Parliament’s sovereignty is undermined. The Supreme Court’s verdict in the Kesavananda Bharati case (1973) serves as a perfect example. It established the “basic structure doctrine,” which permits the judiciary to invalidate constitutional amendments that contradict the Constitution’s fundamental structure. While this was intended to protect against dictatorship or authoritarianism, it provided judges appointed through the collegium tremendous authority over the democratic will of elected parliamentarians.
From Brazil to India, judicial overreach and the many risks it poses
In a resilient democracy, such as India, there is an unambiguous distinction between the executive, legislative, and judicial branches. When judges overstep their legal authority and make decisions that influence policy or executive action, this equilibrium is disrupted. This can lead to a judiciary that functions more as a governing body than an interpreter of laws, undermining the role of elected representatives.
In many democracies, including Brazil, judges are appointed rather than elected, thus they do not answer directly to the population. When a judge gains undue power or begins to make decisions that affect significant sections of society (such as censorship or free speech restrictions), it contradicts the notion that elected officials must be accountable to voters. A lack of accountability results in unrestrained authority and possible abuse as seen in the case of the Musk versus Moraes dispute and some cases in India.
An invincible judiciary can use its power to suppress dissent by targeting people or organisations that oppose the government or the judiciary itself in some cases as seen in the Elon Musk and de Moraes case.
In numerous cases, courts have taken on a quasi-legislative role by giving extensive guidelines on issues that are generally the domain of legislators. As previously discussed, the Supreme Court has intervened in environmental policies such as prohibitions on diesel vehicles and directives on firecracker sales on Diwali etc. While judicial activism is not totally wrong since it may address gaps left by the administration, frequent interventions in policy do raise concerns about overreach.
The Supreme Court ruling in the Sabarimala case was nothing short of judicial overreach in religious practices. While even SC rulings can undergo judicial review, court rulings have far-reaching policy implications leaving little recourse for people to challenge them. As the BJD MP Sasmit Patra said last year in the context of deciding the legality of same-sex marriages, “No five-judge bench of Supreme Court can represent 140 crore Indians.”
Democracies thrive when the legislative, the executive and the judiciary function in tandem without unwarranted interference. A powerful court, untamed by democratic accountability, may subvert the core principles of India’s representative democracy, resulting in a form of governance wherein unelected persons have undue influence over elected representatives and policymaking. Thus, while judicial activism can sometimes be constructive in rectifying wrongs, it must be paired with prudence to preserve Indian democracy.
