Supreme Court must insist on powers of enforcement

As three judges -- including Justice K M Joseph -- are sworn in as Supreme Court justices, B S Raghavan, the distinguished civil servant, points out that India's Founding Fathers did not give absolute powers of enforcement to the court.
It is most surprising, he says, that the Supreme Court has accepted this situation, cleverly designed by the political class to weaken the top court, for all these years without demur.

The various orders passed over the years by the Supreme Court on the dispute over the sharing of the waters of the Cauvery river between Tamil Nadu and Karnataka are a classic example of an institution having the power to pass orders but finding itself helpless in enforcing compliance.

The Cauvery dispute is a recurring example, but one can draw up, as indeed Arun Shourie has done in his latest book Anita Gets Bail, a tally of cases over the years when the Supreme Court's orders had either been ignored or watered down by the government. The Aadhaar case also fits that description.

It all reminds one of a delectable anecdote about President John F Kennedy's derisive comment on President Dwight David 'Ike' Eisenhower about whose administrative ability he had a dismal opinion.

Taking his guests on a tour of the White House, Kennedy would point to the presidential chair in the Oval Office and say: 'Ike would sit there, and say, 'Do this, do that' and nothing would happen!'

Similarly, India's Supreme Court too, in many instances, sits there and says, 'Do this, do that' and nothing happens on the ground by way of compliance.

However, there is the commonly held belief that the Supreme Court is the repository of almost unlimited powers under the Constitution in the judicial sphere.

Lending force to such a belief is Article 142 of the Constitution under which the Court, 'in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India'.

Unfortunately, having gone thus far, India's Founding Fathers did not give absolute powers of enforcement to the Court, but left the manner of enforcement to a law made by Parliament and, until provision on that behalf is so made, to an order made by the President (that is the executive government).

Apart from the fact that no such law has been passed by Parliament so far in this regard, the Presidential order itself was issued only in 1954.

Titled 'The Supreme Court (decrees and orders) enforcement order 1954', it provides for two contingencies:

1. Where any decree or order was passed or made in exercise of the Supreme Court's appellate jurisdiction, it shall be enforceable in accordance with the provisions of law relating to the enforcement of decrees or orders of the court or tribunal from which the appeal to the Supreme Court was preferred.

2. In any other case, the enforcement will be in accordance with the provisions of law relating to the decrees or orders of such court, tribunal or other authority as the Supreme Court may specify in its 'decree' or order or in a subsequent order made by it on the application of any party to the proceeding.

In other words, instead of conferring in plain, unambiguous and straightforward language on the Supreme Court's absolute and final power and authority, on pain of punishment with imprisonment or fine or both, to follow up on its order and make sure that it is obeyed without any question or delay by the parties concerned, the notification has unnecessarily complicated the process of enforcing compliance.

It is most surprising that the Supreme Court has accepted this situation, cleverly designed by the political class to weaken the top court, for all these years without demur.

In the absence of the law empowering the Supreme Court to enforce instant and unquestioned compliance with its orders in its own right, all it is left with is the power of punishment for any contempt of itself.

But this is an omnibus power available to all courts from top to bottom, as a weapon of last resort, so to speak, meant to uphold the majesty of law and safeguard the reputation and credibility of courts, and not to be invoked for the ordinary purposes of day-to-day judicial administration.

This kind of anomalous situation cannot be allowed to go on.

The Supreme Court must insist on the government framing legislation, or, better still, a Constitutional amendment, giving it final and absolute power and authority to enforce its orders within a prescribed time-frame and to impose such punishment as it considers appropriate on the parties concerned.

If necessary it should have its own corps of court marshals in every state under the control of high courts to carry out its directives regarding arrests, attachment of property, and so on.

The law should make the attorney general responsible for watching over the progress of enforcement of the Supreme Court's orders in good time.

The Constitution already provides for his performing 'such duties of a legal character, as may from time to time be referred or assigned to him by the President'.

It must be clear to all but the purblind that this duty of ensuring obedience to the highest court of the land and leaving no one in any doubt about its credibility and authority is of paramount importance not only for the rule of law, but also for the sustenance of democracy itself.

By way of additional information of interest, I may point out that the position is equally vague and hazy in respect of the powers of the US supreme court and the British supreme court and the House of Lords (in the exercise of its judicial functions). US presidents and the executive branch, however, have generally complied with US supreme copurt judgments.

A dramatic instance is the calling out of the military in 1957 by President Eisenhower to enforce the US supreme court's order to racially integrate the public schools in Little Rock, Arkansas.

Eisenhower's famous pronouncement at the time was: 'Whenever normal agencies prove inadequate to the task and it becomes necessary for the executive branch of the federal government to use its powers and authority to uphold federal courts, the president's responsibility is inescapable.' It is still taken to be binding.

This is in marked contrast to the stand taken by President Jackson in 1832 in regard to a judgment he did not like in the case of Worcester v Georgia. It has been reported, though some historians say it is apocryphal, that Jackson exclaimed, 'John Marshall (then the chief justice) has made his decision; now let me see how he enforces it!'

B S Raghavan, a retired member of the Indian Administrative Service, is an author and a public affairs columnist of note.

Photograph: Anindito Mukherjee/Reuters