Was the SC creating a firewall?…Ali Uzair Bhandari
On August 11, 2023 the Supreme Court struck down the Supreme Court (Review of Judgments and Orders) Act, 2023. The essence of the Act was that it expanded the scope of a review before the Supreme Court to be the same as an appeal under Article 185 of the constitution, but only in relation to cases heard by the Supreme Court in the exercise of its original jurisdiction. The Supreme Court struck down the Act on the basis that a review and an appeal were two very different things and that parliament lacked the authority to convert one into another.
Some preliminary points first: what is original jurisdiction and what is the difference (in normal cases) between an appeal and a review?
Original jurisdiction is where a matter is heard for the first time before the Supreme Court. For example, the Supreme Court has original jurisdiction to hear disputes between different provinces. Similarly, under Article 184(3), the Supreme Court has the authority to hear matters of public importance with reference to the enforcement of any of the fundamental rights without such matters first being referred to the high courts.
Traditionally, a review and an appeal are understood to be two separate jurisdictions. The scope for review is far narrower than that of an appeal: an appeal looks at whether a decision was correctly passed while a review is a more limited examination to ensure that nothing of material importance has been missed. Additionally, review is only granted in exceptional circumstances. An appeal, on the other hand, is often granted as a matter of right. This is a distinction established by nearly 200 years of jurisprudence.
The original jurisdiction of the Supreme Court, especially under Article 184(3), was envisioned as a jurisdiction rarely to be exercised, and even then only to deal with matters affecting the fundamental rights of the public at large, and not individual disputes. It has, however, been used to disqualify prime ministers, cancel contracts, direct construction of dams, and interfere with developmental projects and executive policies.
Additionally, the Supreme Court has read in suo-motu powers into Article 184(3), which allows the court to take up matters at its own instance, a power the constitution does not expressly confer. Decisions passed under such jurisdiction are also not generally subject to challenge, except on the limited grounds of review. Those in favour of the Act say that it was passed to provide a remedy against such expansive use of Article 184 by the Supreme Court. The critics of the Act say that its primary, albeit latent, aim was to provide a remedy to certain politicians whom the Supreme Court has disqualified, especially in light of the fact that the Act has been given retrospective application so that all prior decisions of the court under Article 184 can now be challenged.
Either way, there are three primary reasons why the Supreme Court was correct in striking down the Act.
First, as stated above, a review is not an appeal.
Second, and in continuation of the first point, our constitution explicitly differentiates between the appellate jurisdiction of the Supreme Court (for example: under Articles 185 and 212) and its review jurisdiction (under Article 188). Articles 185 and 212 provide that the Supreme Court can only sit in appeal over judgments passed by the high courts or the service tribunals, and not its own. Article 188 states that the Supreme Court can only review its own judgments, and not sit in appeal over them. Had the framers intended for the Supreme Court to be able to sit in appeal against its own judgments, they would have provided for such jurisdiction in the constitution itself. Parliament may not now do so through ordinary legislation.
Third, there is a reason for the original jurisdiction of the Supreme Court under Article 184(3): the framers of our constitution thought that there were some matters so pressing that they required speedy adjudication and finality. Such matters are, thus, taken up by the Supreme Court directly, instead of first being referred to the high courts or the lower courts. Making such decisions by the Supreme Court subject to an appeal defeats their entire purpose.
For these three reasons, the Act was perhaps bound to be struck down, and the Supreme Court was correct in doing so. The judgment, however, went one step further.
The Supreme Court Rules, 1980, which were framed by a full court, provide that the Supreme Court shall only grant review on the very narrow grounds set out in the Civil Procedure Code of 1908. They are thus obviously in conflict with the 2023 Act which drastically broadens the scope of review.
There are two ways in which the three-member Supreme Court bench has dealt with this conflict. The majority opinion has held that the 1980 Rules, framed under Article 191 of the constitution, take precedence over any legislation passed by parliament. Therefore, since the Supreme Court has already dealt with the scope of review in the Rules, parliament may not now legislate on the same topic.
This view may not, in strictly legal terms, be correct. This is because Article 191 explicitly makes any rules made by the Supreme Court subject to law.
In his concurring note, Justice Munib Akhtar has taken a different approach, albeit to achieve the same result. He has opined that Article 188 (which gives the Supreme Court its review power), separately provides rule-making authority and that this authority is qualitatively different from that of the rule-making power conferred by Article 191. In other words, since rules concerning the scope of review are framed under Article 188 and are not subject to law, parliament may not now supersede them through legislation.
Either way, a decision on the status of the Rules was perhaps not needed in the instant case. The fact that by converting a review into an appeal, parliament had attempted to amend the constitution through ordinary legislation was enough reason to do away with the Act. The courts decision on the Rules suggests that it is addressing a broader institutional issue.
In Federalist No 51, James Madison spoke of the need for checks and balances amongst state institutions. Madisons argument was that human beings, by their nature, have a tendency to accumulate power by encroaching upon the power of others. He wrote that since government is a reflection of human nature, this phenomenon also applied to state institutions, with the legislature, as the most powerful of the three branches of state, being the most likely to succeed in doing so. To prevent all power from, thus, being accumulated in the hands of a single institution, checks and balances were necessary so that each branch of government had the necessary power and the necessary motivation to resist the encroachments of the others. Ambition, he wrote, must be made to counteract ambition.
Over the past several months, attempts have been made to severely undermine the authority of the Supreme Court. The previous government repeatedly refused to implement the courts decisions and politicians and ministers have criticized the court, its decisions and individual judges in public gatherings, press conferences and on the floor of parliament. Additionally, through the Supreme Court (Review of Judgments and Orders) Act, 2023, and the Supreme Court (Practice and Procedure) Act, 2023, parliament has attempted to regulate the very functioning of the court itself. This is, in Madisons terms, a classic case of one branch of the state stepping on the toes of another.
In different circumstances, the court may well have treated the Rules differently, or it may not have dealt with the Rules at all. In the prevailing circumstances, however, this judgment wasnt merely about the Supreme Court asserting the superiority of its rules over an act of parliament. It was about the Supreme Court reestablishing its independent position, by creating a firewall against intrusions by a rampaging executive and legislature. This judgment is the Supreme Court telling the government and parliament, We dont trust you enough for you to tell us how to function.
Whether the Supreme Court was correct (or justified) in doing so does not admit of an easy answer and there are arguments both ways. That is a question only posterity will answer.
Courtesy The News