Punishing Peter for the sins of Paul!

Spectacular example of Judicial Over-reach by the Allahabad High Court

The line which separates judicial activism from judicial over-reach is indeed thin yet conspicuous. While judicial activism is hailed by all consumers of justice, adventurism by the courts often undermines the credibility of the institution of justice and brings to it palpable disrepute. The recent judgment of the Hon’ble Allahabad High Court in Umesh Kumar Singh and others v State of U.P., ordering all government employees of the state to send their children to government schools is a spectacular example of judicial over-reach. This uncalled–for adventurism has the potential to upset the fine balance between the three organs of the State, the balance often referred to as the principle of separation of powers.

The Concern of the Court

The learned Single Judge of the Allahabad High Court was of the opinion that since all the primary schools within the State of Uttar Pradesh run by the government were in abysmal conditions, therefore it was necessary for the court to take judicial cognizance of it. The court’s view was that since 90% of the children of the state who were studying in these schools were being imparted sub-standard education, therefore some path-breaking measures had to be adopted to bring about a metamorphosis. Aiming for a total reformation of the pitiable conditions in these schools, the court ordered all government employees to mandatorily send their children to these schools run by the government, failing which they would be fined and denied promotions. The premise which weighed with the court was that if all the government employees send their children to government run primary schools, the conditions in these schools would ameliorate within no time.

Fallacious Line of Reasoning adopted by the Court

It must be stated at the very outset that the objective behind the judgment is laudable and praiseworthy. Nonetheless, the court’s lack of far-sightedness didn’t allow it to gauge that such an endemic, structurally inherent and ruthlessly engineered problem cannot get effectively addressed by a knee-jerk reaction. The reasoning which has been adopted by the court in coming to its conclusion is not only fallacious but borders on perversity. How can the children of bureaucrats/government servants be made to suffer for the wrongs done by their parents or the predecessors of their parents? This amounts to punishing Peter for the sins committed by Paul. Moreover, where is the evidence to suggest that conditions will ameliorate in all the primary schools if children of bureaucrats study in them? The court’s reasoning is based on conjectures and surmises and will result in an exercise in futility since serious issues like absenteeism by teachers, lack of proper infrastructure and skewed student-teacher ratio haven’t been addressed nor any mechanism has been put in place to address them. A perusal of the judgment goes to show that it is devoid of any sound reasoning and has been passed in a cavalier manner without proper application of judicial mind. Moreover, the judgment is more in the nature of a diktat especially on those people (read children) who were not even a party before it and thus constitutes an egregious infraction of natural justice principles. The court cannot ride roughshod over the choice of an individual to study wherever he or she desires.

Can the court legislate?

Another reason why this judgment is a classic example of the judiciary transgressing upon the domain of the Executive is because there was no law mandating the government employees to send their children to government schools. So, the court has clearly legislated in this case which it ought not to.

The Supreme Court as the final interpreter of the Constitution has through interpretation of Article 32 read with Articles 141 and 142, given to itself the power to legislate in exceptional cases whenever there is a legislative vacuum (See Vishaka v State of Rajasthan). Such power according to the court is inherent in Article 32 to mould reliefs and devise new ways of doing justice. One may argue that the High Court in the exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution can also legislate. Even assuming this is so, exercise of such powers flies in the face of the principle of separation of powers – a basic and inalienable feature of our Constitution and upsets the delicate balance between the different organs of the State (See Kehvananda Bharti v State of Kerela). To say that the judgment will operate proprio vigore (by its own force) without any backing of a statutory/executive law is in the face of the separation of powers principle.

Should the judges be apathetic to the sorry state of affairs?

It is nobody’s contention that the judiciary as the protector of fundamental rights of citizens must keep mum when such inalienable rights are being impinged upon due to the apathy of the Executive. A judge empowered with the powers of contempt can treat such violations/apathy with judicial severity but forcing children of bureaucrats to go to government schools and giving them a Hobson’s choice is a punishment in the extreme and cannot be done without breaching the injunction of separation of powers principle. The court therefore could have done the following things:
Firstly, the matter could have been converted into a Public Interest Litigation as such orders when they are brought to life pursuant to a PIL matter are more acceptable to the society. Moreover, PIL matters allow room for more meaningful discussion and cooperation. Secondly, the court hearing the matter could have appointed a Senior Advocate as Amicus Curiae to assist the court which would have allowed the Petitioners, the Respondents, the Amicus as well as the Judges to work on the same side of the team in a non-adversarial manner. Thirdly, the court could have invited suggestions from the government through its Standing Counsels as well as the Petitioners and the Amicus and then implemented the suggestions step-by-step to improve the existing conditions of the schools. Any apathy by the bureaucrats could have been dealt with severity by using the powers of contempt. This would have absolved the court from all the criticism it is receiving from different quarters.

Consequences of Judicial Over-reach

Alexander Hamilton once remarked that out of the three wings of the State, the Judiciary is the least dangerous branch. This is because while the Legislature has the sword and the Executive has the purse, the Judiciary hath only judgments. No more are the words of Alexander Hamilton a truism. Through judgments, judges have often taken upon themselves the task of setting every wrong right.

A judge, in the words of Justice Cardozo, is not a Knight errant, roaming at will in pursuit of his own ideal and beauty. The underlying warning given by Justice Cardozo was that judges must show judicial discipline, i.e. not transgress upon the territory of the Executive and the Legislature, for the simple reason that such over-reach can result in a counter-reaUmesh Kumar Singh v State of U.P.

ction from the other wings and prove fatal to judicial independence. Judicial discipline envisages that judges must respect the wisdom of the Executive and the Legislature in confronting the problems of the society and show restraint by not imposing its own solutions upon other wings – a warning which has been completely ignored by the Allahabad High Court in

 Anubhav Verma

Consultant-at-law