Article 184(3) empowers the SC to pass such orders that high courts can pass under Article 199 in relation to matters of public importance involving enforcement of fundamental rights, and it can also take suo-motu action without an aggrieved person petitioning the court. Without getting into the question of whether these powers vest in the SC or the office of the CJ, the first question is: can the SC make policy choices in exercise of 184(3) powers?
There are two related questions here. What do judges do and how do they do it? Do judges make the law or do they interpret and enforce it? If they do the former, they enter the domain of the legislature. If they don’t, can they make policy choices on behalf of lawmakers or the executive under the garb of interpreting and enforcing the law?
In this framework, citizens’ right to water would be the matter of principle that is to be upheld by the state. Whether this is done by building large dams or small or by harvesting rainwater or by replenishing aquifers or by doing all these things simultaneously would be a matter of policy. By deciding that citizens’ right to water is to be upheld by making large dams, financing for which will be sought through donations and overseen by the SC, it has forced a policy choice on the state. Anyone opposing this policy choice could be held in contempt of court.
The question thus remains, as an institution with enumerated powers (Article 175(2) says “No court shall have any jurisdiction save as is or maybe conferred on it by the constitution or by or under any law”), wherefrom does the SC derive the power to sponsor the Dam Project?
In Mustafa Impex 2016,CJP Saqib Nisar held that, “Article 90 states categorically what the federal government is; it consists of the prime minister and the federal ministers (ie the cabinet) ,the similarity with Articles 176 and 192 which respectively define the Supreme Court and the high court as consisting of the chief justice and judges).” It is interesting that he used the definition of the Supreme Court to affirm that just as the chief justice doesn’t comprise the SC all by himself, the PM doesn’t comprise the federal government.
A natural corollary in the 184(3) context is that the constitution vests this power in the SC and not the CJP. The constitution doesn’t elaborate any further how the 184(3) power is to be used. The Supreme Court Rules are silent as well. If efforts by the PM or ministers to make decisions that are to be made by the federal government are invalid, how is exercise of the 184(3) power by the CJP (when it belongs to the SC) valid exercise of 184(3) powers?
Individual power is vulnerable to arbitrariness and induces uncertainty, as opposed to what rule of law promises. The judicial arm is meant to guard the state and its citizens against arbitrary actions of the executive arm. But if the judicial arm’s power and functions are seen as driven by arbitrariness, who will guard against that?
And three, judicial overreach undermines executive authority. The vacuum theory, that other state institutions should step in because the executive or legislature doesn’t perform, is neither convincing nor not self-serving. The populist saviour model hasn’t worked. Suo-motu identification of problems hasn’t led to sustainable solutions.
There are two related questions here. What do judges do and how do they do it? Do judges make the law or do they interpret and enforce it? If they do the former, they enter the domain of the legislature. If they don’t, can they make policy choices on behalf of lawmakers or the executive under the garb of interpreting and enforcing the law?
In this framework, citizens’ right to water would be the matter of principle that is to be upheld by the state. Whether this is done by building large dams or small or by harvesting rainwater or by replenishing aquifers or by doing all these things simultaneously would be a matter of policy. By deciding that citizens’ right to water is to be upheld by making large dams, financing for which will be sought through donations and overseen by the SC, it has forced a policy choice on the state. Anyone opposing this policy choice could be held in contempt of court.
The question thus remains, as an institution with enumerated powers (Article 175(2) says “No court shall have any jurisdiction save as is or maybe conferred on it by the constitution or by or under any law”), wherefrom does the SC derive the power to sponsor the Dam Project?
In Mustafa Impex 2016,CJP Saqib Nisar held that, “Article 90 states categorically what the federal government is; it consists of the prime minister and the federal ministers (ie the cabinet) ,the similarity with Articles 176 and 192 which respectively define the Supreme Court and the high court as consisting of the chief justice and judges).” It is interesting that he used the definition of the Supreme Court to affirm that just as the chief justice doesn’t comprise the SC all by himself, the PM doesn’t comprise the federal government.
A natural corollary in the 184(3) context is that the constitution vests this power in the SC and not the CJP. The constitution doesn’t elaborate any further how the 184(3) power is to be used. The Supreme Court Rules are silent as well. If efforts by the PM or ministers to make decisions that are to be made by the federal government are invalid, how is exercise of the 184(3) power by the CJP (when it belongs to the SC) valid exercise of 184(3) powers?
Individual power is vulnerable to arbitrariness and induces uncertainty, as opposed to what rule of law promises. The judicial arm is meant to guard the state and its citizens against arbitrary actions of the executive arm. But if the judicial arm’s power and functions are seen as driven by arbitrariness, who will guard against that?
And three, judicial overreach undermines executive authority. The vacuum theory, that other state institutions should step in because the executive or legislature doesn’t perform, is neither convincing nor not self-serving. The populist saviour model hasn’t worked. Suo-motu identification of problems hasn’t led to sustainable solutions.
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