- Tanishka Goswami and Shikhar Aggarwal
I. Introduction
The suo motu jurisdiction of the Hon’ble Supreme Court of India (‘the SC’) relates to cases it initiates on its own motion to address extraordinary situations necessitating its intervention.[1] In July this year, the SC took suo motu cognisance of a viral video from violence-hit Manipur which depicted two women from the Kuki-Zomi community being sexually assaulted and paraded naked. The SC observed how it was “deeply disturbed” by such “grossest constitutional abuse”, and has been ‘monitoring’ the situation in the disturbed state ever since. This suo motu intervention of the Court paved the way for a probe by the Central Bureau of Investigation (‘the CBI’) into several sexual assault cases that have been reported in the state ever since ethnic violence erupted this year.
Termed an ‘offshoot’ of the Public Interest Litigation (‘PIL’) jurisprudence,[2] the taking of suo motu cognisance by courts also entails relaxed systems of procedure. In fact, adopting a trajectory similar to PIL cases, the SC has widened the horizons of its suo motu jurisdiction from solely contempt matters to cases regarding environmental degradation,[3] sexual violence,[4] police atrocities,[5] and recently the COVID-19 pandemic into its dockets. Over the years, this jurisdiction has also been exercised by some High Courts in the country.
Against the backdrop, the authors undertake the following: firstly, tracing the growth of the suo motu jurisdiction of the SC; secondly, examining how the exercise of this jurisdiction, though potentially constituting judicial overreach, cannot be categorised as a total ‘usurpation’ of the powers of other State organs; and lastly, arguing that the suo motu powers of the SC constitute a necessary evil to provide complete justice when constitutionally limited.
II. Parallel Evolution of the Supreme Court’s Identity and Suo Motu Jurisdiction
During the second wave of the COVID-19 pandemic, a three-judge bench of the SC remarked that it could not remain a “mute spectator” during a national crisis.[6] From issues surrounding the distribution of essential supplies, fire incidents in COVID-19 hospitals,[7] and the miseries faced by migrant labourers stranded during the lockdown,[8] to examining the Uttar Pradesh government’s decision to permit the Kanwar Yatra amidst the pandemic,[9] the SC’s suo motu interventions during this period were both diverse and prompt in nature.
However, this has not always been the case.
The period following the 1975 Emergency first saw a mushrooming of PIL jurisprudence, followed by a curious disappearance of the ‘public interest petitioner’.[10] In fact, economic liberalisation was coterminous with the petitioner being relegated to the sidelines of proceedings, replaced with Senior Advocates doubling up as amici curiae. It is here that the Court entered a ‘good governance’ phase by dealing with policy matters, including corruption and procedural impropriety.[11] Parallelly through this evolution, the Court also insulated itself from legislative attempts at seeking accountability. For instance, it managed to successfully preserve its powers to appoint judges to the higher judiciary.[12] The growth of the suo motu jurisdiction followed this self-preserving trajectory.
Since the setting up of the PIL cell rendered it the Chief Justice’s prerogative to assign PIL matters, the emergence of suo motu cases is arguably an attempt by judges to regain control over what cases shall come to them.[13] This attempt culminated in an ugly fashion in 2019, when the Court used its suo motu jurisdiction to label serious sexual harassment allegations against the then Chief Justice, HMJ Ranjan Gogoi, as a “matter of great public importance touching upon the independence of judiciary”.[14] In this context, the authors analyse the scope of judicial usurpation through relevant examples in the following segment.
III. Overreach, Usurpation, and Complete Justice: Sides of the Same Coin?
Unlike the United States, the Constitution of India does not envisage a rigid ‘separation of powers’ (owing to its origins in the British parliamentary system, where the executive operates subject to controls and checks/balances exercised by the legislature).[15] However, the doctrine forms a part of its basic structure.[16] In this light, an organ should not usurp another’s essential functions, even as it may exercise some of its incidental functions.[17] Hence, we argue that the exercise of suo motu jurisdiction by the SC, whilst potentially constituting overreach, does not amount to total usurpation of powers exercisable by other State organs.
a. Degrees of Judicial Action: Conceptualising the Court’s Activism
In 2008, former Chief Justice of India, HMJ K.G. Balakrishnan responded to criticism faced by the SC for ‘usurping’ powers: he lambasted critics for overlooking the absence of any resort for citizens aggrieved by “constant failures of governance taking place at the hands of other organs of State”. In his view, the Court’s function was to correct these failures, and it would be unfair to criticise the institution as furthering vested interests in the garb of activism.[18] However, such optimism has not precluded the SC from taking notice of, and cautioning judges against unjustifiably attempting to perform functions which are essentially executive or legislative in nature. Such actions have been considered ‘clearly unconstitutional’, and beyond the realms of judicial activism.[19]
Discussing whether/not the SC’s suo motu interventions amount to usurpation of powers exercisable by other organs requires clarity regarding the spectrum of judicial action. We conceptualise this spectrum as follows:
Hence, even as the SC attempts to justify its activism to bridge a governance deficit created by the executive, its activism becomes overreach when it begins to flout explicit constitutional mandates of separation of powers.[20] Thus, by surpassing each degree, the Court itself starts to breed a democratic deficit.
b. Suo motu Overbreadth and indeterminate ‘Complete Justice’
Without doubt, the SC has exercised its suo motu jurisdiction on matters ostensibly of public importance.[21] However, whether/not this exercise has always been necessary and effective is debatable. For instance, in 1994, the Court took note of an article in the Hindustan Times titled ‘And Quiet Flows the Maily Yamuna’ through a suo motu writ. This was a year after the Government of India had already signed a ¥17.7 billion financial aid agreement with Japan for the ‘Yamuna Action Plan’. Ultimately, the case was transferred to the National Green Tribunal for adjudication in 2017, 23 years after the SC exercised its suo motu powers.[22]
Additionally, as part of the hearings on the abovementioned case, the Bench commenced parallel proceedings on an unrelated matter by taking suo motu cognisance of a speech by the then-President Dr Kalam on the need for river interlinking. It appointed a committee in 2012 for the execution of India’s largest engineering project (estimated at ₹5,60,000 crore in 2002).[23] Despite the Court’s ‘activism’, both these issues remain unresolved today. They have enabled political parties to derive electoral mileage, while projects continue to miss implementation deadlines amidst a sheer absence of long-lasting solutions.
The Court’s approach in dealing with a matter already initiated by the executive illustrates how judicial overreach may characterise both, the cases it takes up, as well as the remedies it provides.
By awarding such omnibus reliefs, the Court has undertaken ‘managerial exercises’ under its Article 32 jurisdiction. For example, in re Ramlila Maidan Incident, the Court took suo motu cognisance of police action against a group of sleeping protestors in Ramlila Maidan, New Delhi. While it ruled on the violation of the fundamental right to peaceful assembly, the concurring opinion also carved out a fundamental right to sleep under Article 21.[24] Such a reading, whilst consistent with the laudable expansion of Part III under the PIL jurisprudence, does not meaningfully engage with its implications.[25] Visibly, the Court's interventions to ensure better governance cannot be qualified as functions considered traditionally "judicial". However, it is still tough to contend that such interventions amount to total usurpation, especially in a welfare State without rigid separation of powers.
Another question arises upon the Court’s exercise of suo motu jurisdiction: Of what, and from where does the Court take cognisance? The SC has noted that while it can treat letters as writ petitions and deliver complete justice under Article 142, its epistolary jurisdiction cannot be unfettered.[26] Earlier, the Bench used to enlist the source of information upon which it took note (mostly media reports). Since COVID-19, the SC has taken cognisance of ‘topics of national conversation’, cases whose facts are very well-known. However, the Court has also begun to take up suo motu cases without mentioning the basis upon which it takes cognisance.[27] For example, when hearing an application by Vedanta Ltd seeking the reopening of its closed oxygen plant, the Court created another suo motu petition on COVID-19 – it justified this by stating, without any supportive material whatsoever, that orders passed by the High Courts ended up “...prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups”.[28] Whilst making such a serious accusation, the Court maintained that it did not intend to supplant judicial process in the High Courts.[29]
This raises serious concerns about the Court’s invocation of suo motu powers – is it not another act of judicial self-preservation? This is because the Court can be seen as not only assuming greater powers, but also exercising them arbitrarily: this has a major impact on judicial consistency, and invites the criticism of selective invocation of overbroad powers. This ends up eroding the faith of litigants in perhaps the most important cog in the wheel of our justice system.
c. ‘Holier than thou’: Self-Insulation of an Assertive Court and Miscarriages of Justice
As noted above, the Court most controversially exercised its suo motu jurisdiction under Article 142 to hear allegations of sexual harassment against serving Chief Justice Gogoi in 2019, as re Matter of Great Public Importance Touching Upon the Independence of Judiciary. Justice Gogoi constituted a Special Bench comprising himself and two other puisne judges, where he first proclaimed his innocence and mentioned that the case was part of a larger conspiracy to destabilise the judiciary. Berating the complainant as a disgruntled employee filing complaints after dismissal, the order passed did not record Justice Gogoi’s presence on the Bench. When an In-House Committee was constituted to ‘informally’ inquire the complaint, the complainant was neither allowed representation by a lawyer nor provided with copies of her recorded testimony. The woman subsequently withdrew from the proceedings, while Justice Gogoi was granted a clean chit (albeit in sealed cover).
Evidently, the absence of a fair hearing, non-adherence to the rule against bias, presentation of documents in sealed cover, the complainant’s character assassination, and counter-allegations are not reflective of ‘complete justice’. In fact, some have likened this episode as amongst the Court’s biggest failures since ADM Jabalpur.
Crucially, this is not the only instance in which the Court utilised suo motu powers to assert itself, whilst compromising judicial process. In 2016, a three-judge Bench converted a Facebook post by retired Justice Katju criticising its judgment in Govindaswamy v State of Kerala into an unprecedented suo motu review petition.[30] The Court not only neglected its rule in AR Antulay v RS Nayak which stressed the requirement of having proper grounds for a review petition (to prevent unnecessary litigation),[31] but also relaxed locus standi in a criminal trial for arguably the first time. Effectively, the Bench suo motu equated the publicly expressed opinion of a stranger to a criminal case with a PIL. The Court heard Justice Katju’s arguments, dismissed the suo motu review petition, and separately initiated contempt proceedings.[32] Unfortunately, this reductio ad absurdum of judicial process also put the review petition filed by the deceased victim’s mother on a backburner, and was probably an instrumental factor behind its ultimate dismissal.[33] The case highlights how the Court, generally much concerned about rising pendency, brought upon its head additional litigation at the cost of genuinely aggrieved parties.
It should also be noted that the SC has exercised ‘curative’ functions suo motu not just in relation to the executive or legislature: it has also extended hierarchical control over lower Courts with its extensive original jurisdiction.[34] This was illustrated in re Gang-Rape Ordered by Village Kangaroo Court, in which the Court took suo motu cognisance of a Reuters report from Birbhum, West Bengal, concerning the gangrape of a woman upon ‘orders’ given by a village Court.[35] While the Bench enhanced the compensation payable to the survivor, it also bypassed the compensation scheme envisaged under the Code of Criminal Procedure, supposed to be executed by the Government in consultation with Legal Services Authorities.[36] While the end result met the ends of justice in this case, it should be inquired why the Court omitted to avail this as an opportunity to equip lower Courts for giving similar reliefs in subsequent cases.[37] The only explanation therefor is the Court’s disconnect with and reluctance to accord autonomy to lower Courts.[38] Hence, such judicial adventurism, whilst populist, may often be limited in efficacy.
IV. Why the SC’s Suo Motu Jurisdiction is a Necessary Evil that may become a Necessary Boon
Despite the challenges discussed above, the authors opine that the SC’s suo motu jurisdiction is a necessary evil that carries the potential to be transformed into a boon. The following reasons substantiate this argument: firstly, the SC’s exercise of suo motu powers is essential to provide justice without procedural delays in situations demanding such urgent intervention; secondly, it enables the Court to mete out ‘complete justice’ under Article 142; and thirdly, the Court’s suo motu interventions can be controlled and guided to avoid selective exercise.
a. Justice without Procedural Delays
As of December 31, 2022, nearly 70,000 cases were pending before the apex court. Amid these dockets of cases, decisions in certain suo motu matters highlight how judicial actions in unprecedented situations may actually be essential to achieve urgent public safety and render ‘complete justice’. For instance, during the second wave of the COVID-19 pandemic, the Court took suo motu cognisance of issues related to the distribution of essential supplies and services.[39] The Court’s criticism of the dual pricing of vaccines and its recommendation seeking the central government to procure vaccines itself rather than requiring the state governments to compete in the open market, prompted the central government to do away with the dual pricing system and procure 75% of the vaccines. At a time when the Parliament was not in session, and the executive was burdened with extraordinary responsibilities, waiting for lengthy legal-procedural battles to reach their logical conclusions would have inevitably put public health at greater peril. Rather, the Supreme Court engaged in a ‘bounded-deliberative’ approach that ultimately resulted in a crucial change in policy at a time when the country was, quite literally, gasping for breath.
b. A Necessity in order to provide ‘Complete Justice’
While the meaning of the phrase ‘complete justice’ under Article 142 of the Constitution is unclear, the SC has highlighted that prohibitions, limitations, and provisions incorporated in ordinary laws cannot act as restrictions to the exercise of powers thereunder.[40] The Court cannot supplant express statutory provisions in achieving ‘complete justice’;[41] however, as recognised in State of Andhra Pradesh v S. Vishwanatha Raju,[42] it is not prevented from taking “suo motu judicial notice of glaring injustice” under Article 142. In fact, the power under Article 142 is ‘undefined and uncatalogued’ so as to enable the Court to mould it to suit a given situation.[43]
Very recently, in Cognizance for Extension in Limitation, in re,[44] the SC took suo motu notice of difficulties faced by litigants and lawyers in physically filing their petitions/appeals/claims/other proceedings within the respective limitation periods owing to COVID-19. Exercising powers under Article 142, the Court allowed an extension of limitation period, irrespective of what had been prescribed in general laws. It is argued that this wide ability of the Court to ensure ‘complete justice’ would be seriously impaired in the absence of any power to act on its own motion. Hence, by exercising its suo motu jurisdiction where: firstly, reasonable intervention of no other organ can address a pressing concern of justice; and secondly, a vacuum causing impairment of justice has been created by acts or omissions of other organs of the State themselves, the Court may legitimately give effect to its Article 142 powers. The same cannot supplant appropriate actions from the executive machinery, and institutional reform becomes essential to further “complete justice”.
c. Selectiveness can give way to Appropriate Exercise
The exercise of suo motu jurisdiction by the SC has been criticised for its selective nature. In the absence of factors guiding the Court in the exercise of this jurisdiction, its intervention has not been uniform. For instance, while the Court took suo motu cognisance of the UP government’s sanctioning of the Kanwar Yatra amid the pandemic, it failed to take cognisance of the super-spreader Kumbh Mela held in Haridwar during the second wave. As elaborately discussed above, while the Court took suo motu cognisance to probe any ‘larger conspiracy’ in the sexual harassment case against former CJI Gogoi, it has failed to intervene in cases involving grave threats to individual liberty. In fact, legal luminaries have repeatedly sought the Court’s suo motu intervention regarding rising instances of ‘bulldozer justice’, such as the demolitions of houses of those who protested against controversial remarks made by the ruling party’s spokespersons.
Further, in Pakistan where the power to act suo motu is constitutionally granted to the apex court, anxiety has been expressed about its use for ‘political engineering’. The Pakistani SC has been criticised for invoking its suo motu jurisdiction as a ‘legitimising tool’[45] – as a way of compensating for its earlier validation of military coups when the influence of such governments is waning.[46] This has come to fore as the Parliament there now seeks to clip the Supreme Court’s wings relating to the exercise of these powers. After a bill to such effect was passed, the SC stayed its implementation.
However, it is argued that apprehensions surrounding selective exercise cannot justify the effacement of the Court’s power to act suo motu. Rather, they create a case for a more responsible exercise of this power. Firstly, the SC may itself define the contours of its suo motu power as coming into play in extraordinary circumstances that pertain to the enforcement of fundamental rights. This could include guidelines on mandatory disclosure of the source of information that the Bench invokes as grounds for exercising its suo motu powers. Secondly, to further clarify the scope of this power, a constitutional basis may be given to the SC’s suo motu jurisdiction, by adding the following clause to Article 131 (on the Court’s original jurisdiction):
“(2) Without prejudice to any provision contained in this Constitution or any other law in force, the Supreme Court shall, if it considers that a question of public importance concerning the enforcement of the Fundamental Right conferred by Article 21 has arisen, have the power to initiate proceedings on its motion and make an order of the nature mentioned under Article 32.”
Thirdly, just as the PIL Cell screens letter petitions to check their compliance with the SC’s guidelines on permissible subject-matters, the Court may constitute a primary hearing bench to examine whether a matter demands the exercise of its suo motu power in light of guidelines prescribed to that end. This would ensure that matters where the intervention of lower courts is more suited do not end up before the SC by exercise of its suo motu jurisdiction. Alternatively, as Pratap Bhanu Mehta has argued, the standards governing the Court’s intervention will continue to remain a part of an ongoing democratic conversation rather than being preset.[47]
V. Concluding Remarks
Martin Luther King, Jr. remarked how “justice is indivisible”. Bearing that spirit, the authors have attempted to highlight the SC’s understanding of the indivisibility and breadth of ‘complete justice’ under Article 142, in the context of its suo motu jurisdiction. While it has been argued that there are instances in the Court’s PIL jurisprudence that genuinely amount to ‘usurpation’ of powers,[48] the authors believe that the story with the Court’s exercise of its suo motu jurisdiction has been different. Examining various instances, the authors have tried to identify glaring concerns in relation to the subject-matters that prompted the invocation of the SC’s suo motu powers as well as the discretion they offer to judges. The SC has invoked its suo motu powers to assert itself as the world’s most powerful apex Court,[49] inviting criticism not only about the propriety of such exercise, but also its manner. Despite these concerns, the authors believe that there are genuine merits associated with the existence/utilisation of such powers, especially in today’s uncertain and politically fired-up times. In this light, the authors’ recommendations are an attempt to ensure that the Court lives up to the adage of “with great power comes great responsibility”, whilst also cautioning of how “power corrupts, and absolute power corrupts absolutely”.
[1] Marc Galanter, ‘Snakes and Ladders: Suo Motu Intervention and the Indian Judiciary’ (2014) 10 FIU Law Review 74. [2] Marc Galanter and Vasujith Ram, ‘Suo Motu Intervention and the Indian Judiciary’ in Gerald N Rosenberg, Sudhir Krishnaswamy, and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (CUP 2019) 99. [3] Felling of Trees in Aarey Forest (Maharashtra), In re (2019) 9 SCC 363. [4] Gang-Rape Ordered by Village Kangaroo Court in West Bengal, In re (2014) 2 SCC 751. [5] Harassment and Physical Abuse of Ms ‘M’, In re (2014) 10 SCC 826. [6] In Re: Distribution of Essential Supplies and Services during Pandemic 2021 SCC OnLine SC 372. [7] In Re: The Proper Treatment of Covid 19 Patients and Dignified Handling of Dead Bodies in the Hospitals etc. 2020 SCC OnLine SC 1060. [8] In Re: Problems and Miseries of Migrant Labourers (2020) 7 SCC 231. [9] In Re: Alarming Newspaper Report Regarding Kanwar Yatra in the State of U.P. (2021) SCC OnLine SC 548. [10] Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (CUP 2017). [11] Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart Publishing India 2017) 129. [12] Pratap Bhanu Mehta, ‘The Indian Supreme Court and the Art of Democratic Positioning’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (CUP 2015) 244. [13] Asher A. Qazi, ‘Suo Motu: Choosing Not to Legislate Chief Justice Chaudhry’s Strategic Agenda’ in Moeen H. Cheema and Ijaz Shafi Gilani (eds), The politics and jurisprudence of the Chaudhry Court, 2005-2013 (OUP 2015) 284-285. [14] In Re: Matter of Great Public Importance Touching Upon the Independence of Judiciary (2020) 17 SCC 194. [15] Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549. [16] Indira Nehru Gandhi v Raj Narain 1975 Supp SCC 1 [687]. [17] Asif Hameed v State of Jammu and Kashmir 1989 Supp (2) SCC 364 [17]. [18] Sujitha Subramanian, 'The Indian Supreme Court Ruling in Koushal v. Naz: Judicial Deference or Judicial Abdication' (2015) 47 George Washington International Law Review 711, 752. [19] DM Aravali Golf Club v Chander Hass (2008) 1 SCC 683. [20] Siddharth Sijoria, ‘Implied Limitation on the Power of Amendment : A Comparative Study of its Invocation in India, Colombia and Benin’ (2021) 6.1 Comparative Constitutional Law and Administrative Law Journal 89. [21] Galanter (n 1). [22] In Re: News Item Published In Hindustan Times "And Quiet Flows The Maily Yamuna”, Writ Petition (Civil) No. 725 of 1994 (order dated 24 April 2017). [23] Networking of Rivers: In re (2004) 11 SCC 360; Bhuwania (n 10) 43-44. [24] Ramlila Maidan Incident, In re (2012) 5 SCC 1 [318]. [25] See, Arun Shourie, ‘Anita Gets Bail: What Are Our Courts Doing? What Should We Do About Them?’ (HarperCollins 2018). [26] State of Meghalaya v High Court of Meghalaya (2016) 11 SCC 245 [16]. [27] Measures for Prevention of Fatal Accidents of Small Children due to their falling into Abandoned Borewells & Tubewells, In re (2010) 15 SCC 224; To Stop Involvement of Children and Infants in Demonstrations and Agitations, In re 2020 SCC OnLine SC 166; Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, In re 2021 SCC OnLine SC 325. [28] Distribution of Essential Supplies and Services During Pandemic, In re 2021 SCC OnLine SC 339 [3]. [29] Distribution of Essential Supplies and Services During Pandemic, In re 2021 SCC OnLine SC 372 [4]. [30] Sumathi v Govindaswamy 2016 SCC OnLine SC 1145. [31] AR Antulay v RS Nayak (1988) 2 SCC 602. [32] In re Blog Published by Justice Markandey Katju on Facebook 2016 SCC OnLine SC 1258. [33] Govindaswamy v State of Kerala (2016) 16 SCC 304. [34] Galanter (n 1) 79. [35] Gang-Rape Ordered by Village Kangaroo Court (n 4). [36] CrPC 1973, s 357A. [37] Galanter and Vasujith (n 2) 113. [38] Jay Krishnan and others ‘Grappling at the Grassroots: Litigant Efforts to Access Economic and Social Rights in India’ (2014) 27 Harvard Human Rights Journal 151, 183. [39] Distribution of Essential Supplies & Services (n 6). [40] Union Carbide Corporation v Union of India (1991) 4 SCC 584 [83]. [41] Supreme Court Bar Association v Union of India (1998) 4 SCC 409 [47]. [42] (1995) 3 SCC 327 [5]. [43] Delhi Development Authority v Skipper Construction Company (1996) 4 SCC 622 [16]. [44] (2020) 19 SCC 10. [45] Maryam S. Khan, ‘Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization’ (2014) 28 Temple International and Comparative Law Journal 285, 352. [46] Abdullah Mohsin, ‘Suo Motu Action: The Search for an Elusive Criteria’ (2019) 3 PCL Student Journal of Law 54. [47] Pratap Bhanu Mehta (n 12) 260. [48] R Shunmugasundaram, ’Judicial activism and overreach in India’ (2007) 72 Amicus Curiae 22, 24. [49] Aparna Chandra, William HJ Hubbard, and Sital Kalantry, ‘The Supreme Court of India: An Empirical Overview of the Institution’ in Gerald N Rosenberg, Sudhir Krishnaswamy, and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (CUP 2019) 43.
