Directions to the President and Governors are a constitutional overreach by the Supreme Court.


How can there be any difference in the views of Vice President Jagadeep Dhankhar regarding Article 142 of the Constitution, that it should not be used as a nuclear missile, but rather for complete justice, which is the intent of the Constitution? Despite having extraordinary powers, it is not accurate to say that the Supreme Court can do no wrong. The infamous case of ADM Jabalpur versus Shivakanta Shukla is a permanent stain on the judiciary, i.e. the Supreme Court, when it suspended fundamental rights to life. This case primarily addressed whether citizens could file a writ of habeas corpus to challenge unlawful detention during the Emergency.
The Supreme Court's overreach has been felt many times in matters concerning constitutional posts. The cause of the current controversy is the recent case of ‘State of Tamil Nadu versus Union of India.’ In this case, the Supreme Court practically directed the Governors and the President of India to clear the bills within three months of their passage by the legislatures. However, the Supreme Court overlooked the provisions of Article 361 of the Constitution, which provides immunity to the President and Governors from legal proceedings while they are in office.
The President and Governors are not answerable to any court for actions taken in their official capacity. No criminal proceedings can be initiated or continued against them while they hold office. No arrest or imprisonment orders can be issued against them during their tenure. Civil proceedings related to personal acts can be initiated only after a two-month notice. This article of the constitution ensures that the highest constitutional authorities can perform their duties without legal distractions. Therefore, the President and Governors do not fall within the purview of Article 142 of the Constitution. This was why the late Somnath Chatterjee, the former speaker of the Lok Sabha, even refused to accept the notice of the Supreme Court, for which he was lauded by all believing in constitutional propriety.
The Supreme Court has committed many egregious mistakes, and this ruling will likely join the category of judgments made during the Emergency when it justified the suspension of Article 21 (Right to Life and Personal Liberty), meaning that individuals could not challenge their detention in court. This decision was widely criticised for undermining fundamental rights.
Likewise, Keshav Singh’s case revolves around the conflict between the privileges of the Uttar Pradesh Legislative Assembly and the judiciary's authority. Keshav Singh, a member of the Socialist Party, was accused of contempt of the UP Legislative Assembly after distributing pamphlets alleging corruption by a Congress MLA. The Assembly sentenced him to seven days in jail. However, Singh filed a writ petition in the Allahabad High Court, challenging his detention. The High Court granted him bail, which led the Assembly to charge the judges and Singh's lawyer with contempt as well.
This case raised significant constitutional questions regarding the balance of power between the legislature and the judiciary. Similarly, Bihar also experienced tensions between the judiciary and legislative privileges in 1997. These cases underscore the delicate balance among the different branches of government. It is therefore crucial that all the organs of democracy understand their limitations. The Supreme Court cannot give directions to High Courts. That is why, in its judgments, the Supreme Court requests the High Courts and never directs them, as High Courts are also constitutional courts, and the Supreme Court does not have any advisory jurisdiction over them.

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