Can the Supreme Court become an interim Parliament?

Article 141 of the Indian Constitution states that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

On February 12, the Supreme Court will hear a petition whose outcome might have far-reaching constitutional and political implications. The petition challenges the constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which removed the Chief Justice of India from the selection panel appointing Election Commissioners (ECs).

In March 2023, a Constitution Bench of the Supreme Court in a significant judgment (Anoop Baranwal v. Union of India) put in place a new system of appointment of Election Commissioners.

The bench had ordered that the President of India will appoint Election Commissioners on the advice of a Committee consisting of the Prime Minister, and Leader of Opposition (LoP) in the Lok Sabha (or leader of the largest opposition party), and the Chief Justice of India. The judgment was in response to a clutch of petitions that sought reforms in the process of appointment of members of the Election Commission of India.

Later in December, the Parliament made a new law with a Union minister, in place of the CJI as suggested by the top court, as a panel member alongside the Prime Minister.

The petitioner contended that in the Anoop Baranwal judgment, the Constitution Bench had made it clear that a committee of diverse heads was necessary to protect the “fierce independence, neutrality and honesty” of the institution of the Election Commission of India and to end government monopoly and “exclusive control” over appointments to the Election Commissioners. Also, it was contended that the Constitution bench judgment was based on the interpretation of Article 324 of the Constitution and the only way the government could get around it was through an amendment of the Constitution and not by bringing in a statutory law.

The most important point that emerges from this case is whether the court’s authority to pronounce binding decisions under Article 141 of the Constitution can be circumvented or diluted by a law. In this context, Justice Surya Kant remarks that the “real test here is between the court’s opinion and exercise of legislative powers” is significant to understanding the importance of the case. Also, the bench hearing the petition has pointed out that the importance of the matter lies in the fact that, ultimately, it is a test of the legitimacy of legislative power or the court's power under Article 141 of the Constitution.

Article 141 of the Indian Constitution states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Supreme Court has time and again held that its judicial pronouncements lay down the law and Article 141 of the Constitution mandates that law declared by the Supreme Court is binding on all courts, including the Supreme Court itself.

In the Union of India v. Raghubir Singh judgment, the Supreme Court held that “the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs and, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”

In the case titled Dr. Shah Faesal and Others Versus Union Of India Supreme Court has noted with much emphasis that “It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.”

In his book ‘Landmark Judgments that Changed India’ former Supreme Court Justice Ashok K Ganguly writes, “This is a unique power of the Indian Supreme Court, not to be found in other Constitutions. What has been very thoughtfully explained by President Roosevelt in his speech is virtually true of the Supreme Court’s power under Article 141. The American president said: The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making.”

In her book ‘10 Judgements That Changed India’ Zia Mody makes two very significant points in this regard. She writes: Justice Markandey Katju opined that there were ‘hundreds of pressing social needs’, but it was not within the court’s domain to address them just because there were no laws related to them. He also made some striking observations on the Supreme Court’s role in Vishaka: In Vishaka v. State of Rajasthan . . . a three-judge bench of this court has issued various directives and as stated therein these will be treated as law under Article 141 of the Constitution . . . While we fully agree that working women should be protected against sexual harassment, the constitutional question remains whether such directives by this court are constitutionally valid? In substance the court has said . . . that it will become an interim Parliament and legislate on the subject until Parliament makes a law . . . Is this constitutionally valid? Can the court convert itself into an interim Parliament and make law until Parliament makes a law on the subject? I have grave doubts about this.

Another important observation made by Mody was that “Some authors have correctly observed that Vishaka has ‘institutionalized judicial lawmaking’. This is reinforced by the fact that the Supreme Court’s decisions are ‘law’ and are legally binding on all other Indian courts, under Article 141 of the Constitution. The mere fact that the guidelines were transitory does not affect this deduction; after all, the legislation that Parliament enacts itself operates until Parliament decides that it should not. Therefore, rather than temporarily filling a legislative void, what the Supreme Court really did was redress a democratic deficit. One wonders whether this is what Cardozo envisioned when he posited that ‘judges don’t discover law, they create it”.

As the Supreme Court gears up to decide the constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, it will also interpret the scope of Article 141, which will have a significant impact on the power dynamics between the executive and judiciary.