Recently, on January 2, the Supreme Court in Krishna Kumar Singh vs State of Bihar, emphasized the power of judicial review. It reiterated the principle that re-promulgation of ordinances is a subversion of the democratic legislative processes as it compromises parliamentary supremacy as advocated by the constitution.
Our constitution makers had incorporated the principle of separation of powers, which was to be maintained between the three organs of the government in exercising their duties; the legislature is tasked with the job of making laws, the executive’s role is to administer the country by enforcing these laws and the judiciary interprets the laws and reviews them to ensure they are constitutionally compliant. However, it can be seen that the power to promulgate ordinances stand out as an outlier in our constitution as it confers power to the executive to make laws, thereby tweaking the balance of power, but this exception is provided only when the president or the governor is satisfied that “circumstances exist which render it necessary for him to take immediate action ” and when both houses of parliament or the state legislative assembly is not in session.
Even though originally, while the constitution was being drafted, the use of ordinances as a tool to make laws was mainly considered being a ‘power to legislate when parliament is not in session’, the dismantling of the principle it was based on, has become apparent at both the Central and State level. Now, the power is scarcely used as an exceptional measure and governments misuse it to avoid prescribed legislative barriers as well as the democratic requirements of argument and deliberation. This extraordinary measure of promulgating an ordinance was granted to avoid a situation of constitutional vacuum but in present day scenario it has been converted into a source of parallel law as opposed to the scheme of the constitution.
So what was essentially considered animal cruelty as of 2014, should that ‘sport’ be allowed by violating the rights of the voiceless and compromising on legal expertise in the name of culture and tradition?
If we look at the Jallikattu movement that has been sparking outrage, we can look deeper into the issues of how ideological divergence can influence legitimacy of court decisions, rise in judicial politics and how constitutional principles can get subverted to cater to public opinion.
Political scientist Alexander Hamilton viewed the Court as “an excellent barrier” against “the encroachments and oppressions of the representative body” that could serve “as an essential safeguard against the effects of occasional ill humors in the society”. According to this perspective, the institutional design of the Supreme Court insulates the justices from public opinion. However, in today’s democratic setup, courts are interested in public opinion and judicial implementation requires co-operation from the government and the people in various regions to ensure that such implementation is forthcoming. Even so, it is difficult to accept and justify popular support as a valid source of normative legitimacy or prioritize it over expertise, that too in large democracies with scathing ideological differences.
The Jallikattu protests turned into a movement occupying significant importance in highlighting various issues churning in the minds of the southern populace against the central government. Jallikattu has become a rallying point for “tamil pride” because of a sense of grievance nursed over last few years. Tamilians feel they have been neglected by the Centre for far too long, whether it be the Cauvery water dispute or Tamil fishermen dying near the Srilankan waters, they continue to feel suppressed by the Centre and through the Jallikattu movement, they wanted to reclaim their rights.
Succumbing to popular pressure, the state government promulgated an ordinance to allow Jallikattu by amending the Prevention of Cruelty of Animal Act (PCA), on the basis of which the Supreme Court in 2014 had banned Jallikattu. The centre also made changes to a notification by the Environment Ministry, to extend their support and allow for the conduct of Jallikattu, all this knowing that the court had already ruled on this and the matter was sub-judice.
On January 31, the court refused to stay the Tamil Nadu ordinance in light of widespread protests in various regions, but at the same time slammed the TN Govt for the poor management of the law and order situation in the state.
A previous case that can be analyzed for this context is the Shah Bano judgment of 1985.This case emanated from Indore where a prosperous lawyer refused to give maintenance to his wife, citing a conflict with Muslim personal law. Shah bano challenged this and claimed maintenance under section 125 Code of Criminal Procedure, 1973 (CrPC) and the SC held that any religion’s personal law aside, CrPC is a secular law and that she would be entitled to maintenance. Even though this was heralded as a progressive ruling, the Muslim orthodoxy saw it as an interference in their personal laws and cultural practices and the then prime minister Rajiv Gandhi, buckled under pressure by coming up with the Muslim Women Protection Act, 1986 which essentially nullified the landmark and progressive Shah Bano judgment.
The centre then came up with a new act, just as now the state is attempting to amend a said act due to pressure from a said group. Even though the judiciary later reinforced the Shah Bano judgment and repealed the Muslim Women Protection Act, 1986 in the case of Daniel Latifi only in 2001, it points towards the trend of how political and public pressure affected judicial legitimacy and extended the process of delivery of justice, compromising on constitutional principles and rights of the citizen.
The 2014 ban on Jallikattu in the case of Animal Welfare Board of India v. A. Nagaraja was based not just on the PCA Act but also international guidelines and rights of animals as enshrined in our constitution. The court held that the sport is inherently cruel towards bulls, violating sections 3, 11 and 22 of the PCA Act, 1960. The judgment categorically held that the bull’s body is not anatomically designed to be running like this and no matter what you do (be it putting chilli powder in the animal’s private parts, poking it with spears or biting/breaking its tail), the cruelty is inescapable since the bull has to be scared out of its mind to run as it is made to. Such running is essential for the bull to be “tamed”, which is the literal definition of Jallikattu.
So what was essentially considered animal cruelty as of 2014, should that ‘sport’ be allowed by violating the rights of the voiceless and compromising on legal expertise in the name of culture and tradition? Haven’t we done away with cultural practices that violated constitutional principles in the past? Should a sound judgment based on thorough understanding of the law be sidelined because public pressure demands it? Should court judgments derive legitimacy largely from public support? Or till what extent can public influence be allowed to be used as a tool to legitimize laws and decisions? Can it be an authoritative indicator of the courts legitimacy in public discourse? These are just some questions that emanate from this issue and need to be deliberated upon.
Even though throughout history this concept is rapidly evolving; public accountability is an important ingredient in a democratic system, and public opinion has a major influence when it comes to forming laws and its enforcement, regardless of that it cannot be the sole or the primary criterion for ensuring legitimacy in ensuring justice. A balance has to be maintained as the task of law making and enforcement is more so an objective one, and should not be vulnerable to pressure, political or public. People have ideological preferences and their perception of the court’s judgments might not always be aligned with them, but if the incongruence between the two and the attempt to align them leads to a compromise on expertise and subversion of basic constitutional principles, it would render the judicial system devoid of any authoritative force.