By Vivek K Agnihotri
On the sidelines of Constitution Day celebrations in Parliament on November 26, 2021, which the Opposition parties boycotted, the attention somehow turned to the role of the judiciary in the Indian polity. Chief Justice of India NV Ramana, in his address during the opening ceremony of the Constitution Day function organised on the same day by the Supreme Court registry, stated that lakshman rekha drawn by the Constitution is sacrosanct. But there are times when courts are compelled to pay attention to unresolved grievances in the interest of justice. The intention behind such limited judicial interventions is to nudge the executive and not to usurp its role. And he did not stop there.
In his address during the closing ceremony of the celebrations the next day, he drew attention to another issue—that the legislature does not conduct studies or assesses the impact of laws that it passes. This sometimes led to big issues. He cited the example of Section 138 of the Negotiable Instruments Act, 1881, an amendment to which has created an additional burden of thousands of cases on already overloaded magistrates. Similarly, rebranding existing courts as commercial courts without creating a special infrastructure would not have any impact on the pendency, he added.
President Ram Nath Kovind, who was present during the closing ceremony of the function at the Supreme Court, noted in his valedictory address that in the Indian tradition, judges were regarded as models of rectitude and detachment akin to “a person of steady wisdom” (sthitapragya) as defined in the Gita. Judges, he added, must, therefore, exercise utmost discretion in their utterances in courtrooms. Indiscreet remarks, even if made with good intention, gave space for dubious interpretations, which ran the judiciary down. Justice, the president remarked, was the critical fulcrum around which democracy revolved and it got further strengthened if the three pillars of democracy—the judiciary, the legislature and the executive—maintained harmonious relations.
Be that as it may, according to the Oxford Dictionary, “to nudge” is to push gently or gradually in a particular direction. According to Webster’s New World Dictionary too, it is a gentle push or poke with the elbow in order to get the attention of someone. However, the judiciary has not only given nudges but also occasionally jolts or wake-up calls, in a manner of speaking. Sometimes, its orders have led to a butterfly effect, raising a veritable storm.
The observations of chief justice relating to the “judicial nudge” came at the end of a year that saw the Supreme Court intervene on issues as varied as vaccination programme for Covid-19, distribution of oxygen to Delhi’s hospitalised citizens, setting up the Justice RV Raveendran expert committee to enquire into the Pegasus spyware allegations and appointing a retired High Court judge to monitor the Lakhimpur Kheri killing of farmers and civilians.
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The license for these shoves comes from the overarching and sweeping provision in Article 142, which states that the Supreme Court in the exercise of its jurisdiction may pass such an order as is necessary for doing “complete justice” in any cause or matter pending before it. The Supreme Court has held that it has unfettered powers under Article 142 to enlarge the scope of hearing in a particular case in order to render substantive justice, depending on the facts and circumstances of the case.
An example of this was seen on November 22, 2021, when the Supreme Court ordered admission into IIT-Mumbai of a student who was unable to pay the fees on time due to technical reasons. From time to time, using the authority of Article 142, the Supreme Court has delivered many big decisions. In the biggest of them all—the Union Carbide case (1989)—the Court deviated from the existing law to grant relief to thousands of persons affected by the gas leak and awarded a compensation of $470 million to the victims. The Court said that to do complete justice, it could even override laws made by Parliament.
Another example is when the Court asked that Nirmohi Akhara be included in the Ayodhya Temple construction trust. It also used Article 142 to transfer the Babri demolition case from Rae Bareli to Lucknow in 2017. It also ordered the cleaning of Taj Mahal, releasing of thousands of undertrials, ban on the sale of alcohol along national and state highways and cancellation of allocation of coal blocks granted from 1993 onwards, among others.
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Under Article 32, read with Article 142, the Supreme Court issued guidelines and directions to protect rights under Article 21, read with Article 14, to provide immediate relief, till such time as the legislature steps in to substitute them by proper legislation. Important among these are the famous Visakha judgment of 1997, which led to the passage of the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013; Vineet Narain vs Union of India (1998), which laid out several steps to curb political influence in the functioning of the CBI and the good Samaritan judgment (2014), which led to the issuance of guidelines by the Ministry of Road Transport and Highways (2015), which were later approved by the Supreme Court (2016). On March 9, 2018, in a landmark decision in Common Cause vs Union of India, the Supreme Court declared the right to die with dignity as a constitutional right and passed an order declaring passive euthanasia permissible and also legalised “living will” in the country.
In economics, the Nudge Theory propounds that a subtle shift in government policy may encourage people to make decisions which are in their broader interest. Richard Thaler, the father of the “Nudge Theory”, was awarded the Nobel Prize in 2017 for his contributions to behavioural economics. Moreover, according to behaviour and environmental science experts, coaxing rather than coercion induces better behaviour from people, such as healthy eating.
The Judicial Nudge Theory, on the other hand, is a corollary of the age-old dictum that it is the part of a good judge to enlarge his jurisdiction, i.e. remedial authority, which, in turn, is a “purposive” expansion of the “Nudge Theory”.
—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012