Corrective Measure

Inevitably, the process of degeneration of Parliament's conduct has had its effect on the functioning of other democratic institutions. In the last decade, the Supreme Court of India has had to tackle, deliberate upon and pronounce judgements on some of the gravest politico-legal and socio-economic issues—the Mandal agitation and the Ayodhya crisis stand out prominently. The expanded role of the Court has not gone unnoticed and several journalists, legal experts, and academicians have filled several reams of newsprint in their attempt to analyse what has been called the "resurgence of judicial activism". There are those who allege that Parliament has abdicated its primary responsibility while others accuse the Supreme Court of transgressing into the spheres reserved for Parliament and the Executive.

Many experts have expressed fears on whether the delicate balance of power envisaged by our Constitution is being upset by the shift in primacy of democratic institutions.

My view of the matter is at considerable variance with those expressed before. I believe, and in stating this view I do not mean to offend those who have exercised their minds considerably over this vital issue, that these opinions do not go to the heart of the matter, but stop at scratching the surface of the real issues. If one were to delve deeper into the core of these developments, one would realise that the events occurring on the national scene owe their origin to the humble citizen. The present situation is not really a case of one democratic institution trying to exert itself over another; rather, it is a case of citizens finding new ways of expressing concern for events occurring at the national level, and exerting their involvement in the democratic process.

The Indian citizen is probably the most underrated entity in the world of Indian politics. Time and again, he has shaken off the label of the illiterate, naive simpleton that is sought to be tagged onto him, by making intelligent choices at the hustings. Many a politician—and a few Governments too—has paid the price for believing this notion by having to surrender power for this colossal folly. During the initial years, the citizen was quite satisfied with the policies of Government, for the successive Governments did make honest attempts to address issues which touched his life. But, in recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of frustration with the democratic process. The ordinary citizen has reacted in either of two ways. One group—whose members constitute a large majority of our population—has chosen to look upon these developments as an unavoidable feature of their lives and has adapted itself to these uncertainties while continuing to bemoan its destiny. The other group—which constitutes a very small minority—has chosen a more positive, innovative approach and has sought to achieve its objectives through the judiciary. This it does by approaching public spirited organisations and bodies, who in turn, file public interest cases before the courts. This would have been wholly unnecessary if the issues were fully discussed in Parliament and people were kept informed of developments.

When such citizens raise grave constitutional issues and exercise their fundamental rights in invoking its jurisdiction, the Supreme Court is left with little choice but to act in deference to its constitutionally prescribed obligations. This is the reason why the court has had to expand its jurisdiction by, at times, issuing novel directions to the executive; something it would never have resorted to had the other two democratic institutions functioned in an effective manner.

However, by virtue of the fact that the present situation is a corrective measure, the phenomenon of judicial activism in its aggressive role will have to be a temporary one. Fears of judicial tyranny are really quite unfounded, because judges themselves are aware of the fact that the non-elected judiciary is neither meant nor equipped to act as a policy-making body. Judges, by virtue of their office, are supposed to live lives that do not allow them to continuously maintain links with the ground realities in society. That is why I have always advocated restraint and circumspection.

It is the province of the elected representatives of the people to communicate directly with the masses and orient policies to suitably address their immediate problems. Illiteracy, when compounded by lack of transparency resulting in lack of information to the people, is bound to manifest itself in some other manner. If our democratic institutions of the day do not perform their constitutionally assigned functions, the vigilant citizen cannot be expected to wait for the system to correct itself; he will and can be expected to take upon himself the task of enforcing the rights granted to him by the Constitution.

We must recognise this spirit and I do hope that this spirit of democracy, which has been imbibed by the Indian citizen, will see us through our present crisis. The constitutional functionaries have been forewarned that any default in the performance of their duties is unacceptable—one can only hope that these warnings will be heeded and effective steps will be taken to put Indian democracy back on the rails.

(Excerpt from the Zakir Hussain Memorial Lecture)