Never before perhaps in the period since Independence has the fundamental principle of harmonious balance to be maintained by the Executive and the Judiciary in the exercise of their respective powers been put to the test as in the petition filed under Article 137 of the Constitution by the Central Government. The petition seeks review of the Supreme Court's judgment overruling the first-come-first-served (FCFS) policy adopted by the Government in the allocation of 2G spectrum and prescribing public auction as the only permissible route for future allocations.
When Nani Palkhivala was once asked what brakes there were on a runaway Supreme Court (SC), he did not lose a moment to reply, “None, none at all”! It is to be hoped that the present review petition will help devise some brakes and delineate the boundaries within which the three branches of the Government should function.
The fact that the Constitution has left it to the good sense and discretion of the SC itself to determine the scope, extent and manner of judicial intervention implies certain corresponding obligations on the court's part.
Prime among them is the observance by the SC of certain canons of reticence and restraint both in the language of the remarks made from the Bench during hearings and in the degree of selectivity it applies in taking up the issues bearing on the Constitutional validity of legislative enactments and the discharge of its responsibilities by the Executive.
Coming close in importance are the maxims that moderation adds to the majesty of law and judicial reserve is the ultimate touchstone of the credibility of a judge.
IRONY
Over a period, the SC and emulating it, the High Courts, have assumed to themselves, in the form of public interest litigation or in pursuit of judicial activism, jurisdiction over policy formulation and administrative matters, often laying down impossible targets to be fulfilled by the Central and State Governments.
The irony of this stands out when set against the absence of any sign of control of unconscionable delays in the disposal of cases by Courts, or in delivering judgments, and enforcement of the judicial code of conduct framed by the Conference of Chief Justices of the Supreme and High Courts.
It is undesirable, indeed, it is against the larger national interest itself, for the Courts to step into the policy and administrative domains and give the impression of supplanting elected legislatures and duly constituted governments, or second-guessing what they consider best for the country after due deliberation according to the established process. Courts are simply not equipped for running governments by proxy, and they should refrain from any attempt to that end.
To borrow the words of a distinguished US Supreme Court Justice (Bushrod Washington), “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”
GOLDEN OPPORTUNITY
Or, as another US Justice (Harlan F.Stone) who later became Chief Justice, said, judges should not read into the Constitution their own “personal economic predilections”, and governments would be rendered impotent if the executive and the legislatures were not free to choose the methods of solving the problems of poverty, subsistence, and health of large numbers in the community according to their own lights.
It is good, therefore, that the Central Government has frontally and unequivocally taken the stand that in deciding the 2G spectrum case as it did, the SC had “travelled beyond the limits of judicial review and entered the realms of policy-making”.
The Government has argued that the SC has done so without applying its mind to the considerations of promoting growth, affordability, penetration of wireless services in semi-urban and rural areas and maintaining a level-playing field and without taking into account the prevalent facts and circumstances. These grounds are not without merits. The nation will be keenly waiting for the outcome of the Government's review petition which provides a golden opportunity to reaffirm once and for all the checks and balances that has made India's Constitution such a strong foundation for all the progress that the nation has so far achieved.