Prof D Mukherjee
The recent debacle relating to R G Kar Medical College & Hospital, Kolkata (RGKMCHK)’s public health services governance and consequent protests of the Resident/Jr. Doctors’ protest against the reported rape and murder of a postgraduate lady resident doctor on duty within the college and hospital premises on August 9, 2024 has rocked the world on the count of merciless crime, so far ever, hardly witnessed by the civil society. The peaceful protest of the resident doctors and the common mass-citizens has been on for last 10 or more days demanding the justice for the deceased by identifying the criminals who orchestrated such heinous crime. The Supreme Court of India has taken, Suo-moto, cognizance of the case and the RGKMCHK resident doctors had been ordered by the Hon’ble Supreme Court to called off the protest and resume their duties latest by 5 P.M. on September, 10, Tuesday. The apex court of the country is primarily envisaged by the Constitution to take up the disputes or matters when the disputes involving questions of law brought by the aggrieved who is not satisfied by the order or judgement passed by High Court(s) and or Tribunal(s). Under the circumstances, raised are several queries in minds of the civil society across India, including if a question of law involves and makes it suitable for taking up the RGKMCHK case Suo-moto by the Supreme Court? Let us for the moment, think that that the Supreme Court is concerned with the safety issue of the doctors and the perpetrators of the horrific crime are still not identified and punished so Apex Court steps in. In this context, it may be mentioned that the Judicature of High Court at Calcutta has already shifted the investigation from the ‘SIT’ constituted by the State Government to the CBI, the top Investigating Agency of the Country, CBI, as the civil society expressed confidence-deficit in the competence and capability of the SIT for dealing with such a horrific crime.
Next query peeps in the mind relating to protection of ‘Fundamental Rights’ relating to ‘Right to Life’ that includes the right to live with dignity, right to livelihood, right to live in healthy environment and protection of personal liberty. The state should ensure that that no citizen of the country is denied equality before the law or equal protection by the laws within the polity of sovereign India -guaranteed by Article 21 of Constitution and the doctors are demanding the same. Under the stated scenario, doctors like any citizen have the fundamental rights to assemble somewhere , organize and take part in peaceful protest guaranteed by Article 19(1)(a) , giving the citizens the right to freedom of speech and expression including right to express opinions about the functioning of the Government while Article 19(1)(b) provides citizens the right to assemble peacefully and without arms , hold demonstrations , public meetings and rallies and processions subject to reasonable restrictions in the interest of public order, sovereignty and integrity of India and whether the present scenario of the doctors’ peaceful protest becomes the subject of reasonable restriction that the state can impose by law and the highest appellate authority can by itself impose any restrictions unless the extent of reasonable restrictions of Jr. Doctors /Resident Doctors’ right to protest are brought before it in a case makes a legal researcher ponder . Moreover, it is difficult to understand the rule of law or principles of law that sanctify the peaceful protest without becoming subject to legal sanction till 5 P. M. on Tuesday, September, 10, and the same shall be illegal if the protest is not concluded by the set deadline. The legal experts and legal researchers have reason to understand why Constitution has not empowered the Supreme Court to taking up cases Suo-moto in order to ensure complete independence of the judiciary and protect the Apex Court from the risk of becoming a political prey and consequently armours it enjoy the confidence of citizens who considers the apex court as the last resort of judicial asylum. The issues concerning right to life and protection of personal liberty of any citizen cannot be denied unless that citizen commits a crime and this constitutional protection is equally applicable to the the issues concerning Resident/Jr. Doctors’ safety which is not simply a question of law but it is pertinent to public health and administration.
The ongoing protest of the doctors has been germinated and consequently sprouted under the ground when the common people irrespective of political ideology, caste, creed and religion expressed their unhappiness on the manner the case is being deal with by the government including executives and bureaucratic agencies.
The legal history including jurisprudence of all time evidence that law is evolved through out human civilization on the foundation of social customs and usages, people’s sensitivity and feelings including general views of the common people’s demonstrative sentiments. Suo moto action by the Supreme Court is derived from its constitutional mandate to protect fundamental rights and act as the guardian of the Constitution. Article 32 and Article 142 of the Indian Constitution provide the Supreme Court with the power to issue orders and directions to do complete justice in any case. This enables the Court to step in, even without a formal petition, when it sees gross violations of rights, public interest, or a failure of other branches of government to act. These two Articles demarcates jurisdiction for the Supreme Court for enforcement of fundamental rights and empowers to issue the writs including habeas corpus, mandamus, prohibition, quo-warranto, and certiorari to enforce them against the state. The Supreme Court of India came into existence by dint of Article 124. It is the final court of appeal for all civil and criminal cases -including the power of judicial review. The Apex Court has wide appellate jurisdictions over all courts and tribunals in India including granting special leave to appeal from any judgement, decree or order by any court including taking up any case Suo-moto. Over and above all, the Supreme Court is the protector of fundamental rights and personal liberties, guaranteed by Article 12 to Article 35 of Constitution, of every citizen. It is the apex judicial institution for interpretating and settle the disputes involving question of law duly certified and referred by any court of the country and taking up any case Suo-moto is hardly the routine and common jurisdictional functions of the Apex Court. Section 23 of the Contempt of Courts Act, 1971 granted the Supreme Court Suo-moto powers and the procedure for Suo-moto petition was finalized in 2014. It is believed that the Supreme Court is always judicious and exercises legal enforcement and judicial activism not as routine matter as taking up cases Suo-moto during 1990-2024 hardly 50 as per SCO out of which 10 are taken up just in 2024 starting with the issues of an audacious order of Calcutta High Court in January last and includes the recent one relating to rape and murder of a postgraduate trainee and resident lady doctor at RGKMCHK and it is heartening to note that most of them still remained inconclusive .
The increase in Suo moto cases-particularly 10 taken up by the apex court in past nine months has led civil society to question the Supreme Court’s independence. Critics argue that frequent Suo moto interventions may erode public confidence in the judiciary’s impartiality, with accusations that the Court may be overstepping its constitutional boundaries or acting under political influence. Judicial activism is necessary in a functioning democracy, but it must be balanced with judicial restraint. In India, the Court has historically stepped in when the executive or legislative branches have failed to act in the public interest. However, the perception of politicization arises when the judiciary appears to act in ways that align with political interests or overuse its extraordinary powers. This perception can harm public confidence in the judiciary’s independence, which is a cardinal principle of democracy. The Suo moto action should be used sparingly, as seen in global judicial practices. In the United States, the Supreme Court does not exercise Suo moto powers, relying instead on formal petitions and a clear separation of powers.
This practice limits the scope of judicial activism, preserving the judiciary’s independence while ensuring that courts do not interfere unnecessarily with executive or legislative functions. The Court must be mindful of public perceptions and the risks of overreach. Judicial activism is crucial in cases where fundamental rights are at stake, but it must be balanced with judicial restraint to maintain the independence of the judiciary, which remains a cornerstone of democratic society. Instances of where Suo moto action was deemed necessary include Vineet Narain v. Union of India (1998), where the Court intervened to ensure transparency in the investigation of political corruption. Similarly, in In Re: The Exploitation of Children in Orphanages in Tamil Nadu (2017), the Court acted to safeguard vulnerable children’s rights. These cases reflect the Court’s proactive stance in addressing urgent and pressing issues affecting public rights. By examining global practices, such as the restrained approach of the U.S. Supreme Court, Indian courts can ensure that Suo moto actions are taken only in exceptional circumstances, protecting both public interest and the integrity of the judiciary.
(The author is an Independent Researcher, Educationist and Management Scientist)
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