Judiciary Takes Over

And the broom used by the judiciary has been all-pervasive. From stepping in decisively to save the Taj Mahal from polluting industries in the region to monitoring the allotment of government houses and supervising the probes by the CBI, it is the Supreme Court which is cracking the whip. Technically speaking, all these areas are within the realm of the executive. The Ministries of Culture, Tourism and Environment should have got together in the routine course to protect the Taj. The Ministry of Housing and Urban Development has the mandate to oversee the allotment of government houses. And the Prime Minister, who himself holds the Ministry of Personnel portfolio, was duty-bound to ensure that the CBI pursued corruption cases without fear or favour. But with the Government unable or unwilling to perform its functions, the apex court has been forced to step in. The Supreme Court appears to have virtually assumed the functions of the executive, leading to concern in some quarters that the development could lead to judicial despotism.

Says Justice Bakhtavar Lentin, former judge of the Bombay High Court: "In no democracy in the world can it be said that the courts—the higher judiciary—can govern the nation. The judiciary is intended, and its only function is, to lay down the law and to interpret the laws enacted by the legislature. Judicial activism, as it is now fashionably called in India, is a new trend. But in the long run it is an unhealthy trend." He admits that the trend has set in largely because of the growing perception that the higher judiciary is "the last resort to right the wrongs done by the bureaucracy and inability or reluctance of the Government to decide issues which it alone should do," but maintains that it is dangerous. "If the judiciary is to be a super government, what will be the check on the judiciary itself?" is his question.

Constitutional expert Nani Palkhivala also agrees that it is not for the court to assume these functions. But he adds that it is compelled to do it in order to fill a vacuum. "The streets of Delhi are dirty. Who has to initiate a clean-up? The judiciary. Or the streets would remain dirty. There is a financial scandal. If you don't ask the investigative agencies to do it, they would remain uninvestigated. I don't remember a time when the country was so badly governed....I don't think we had ever reached a state where there was such a lack of functioning by the executive and the legislature," he says, echoing the common belief that it is the near-complete abdication of responsibility by the Government as well as Parliament which has created the conditions for the current bout of judicial activism.

Chief Justice of India A.M. Ahmadi summed up the current phase of activism succinctly in his Zakir Hussain Memorial lecture in New Delhi recently when he said the courts would never have resorted to it "had the other two democratic institutionsfunctioned in an effective manner."

Justice Ahmadi is sternly disapproving of the manner in which Parliament has conducted itself lately: "There has been a perceptible decline in the performance of Parliament. One particularly disturbing phenomenon which has become quite a regular feature is the holding up and the paralysing of the entire proceedings of the Houses of Parliament by groups of members who walk into the well of the House and disrupt normal activity; this inevitably leads to walk-outs and sometimes many days pass without any business being transacted. Another worrying feature is the decline in the level of debate within the Houses in terms of both quality and content."

 His candour is impressive as well as revealing. Seldom has the seniormost judicial functionary of the country publicly criticised the executive and legislative wings. And the question which many are asking now is whether the judiciary could have shown this kind of courage till the mid and late '70s when the executive and Parliament so often combined to thwart the judiciary by amending the Constitution and also by putting the judges under pressure—setting up the precedent of superseding them for the top slots. When the trend of judicial pronouncements followed by constitutional amendments continued to be widely prevalent till the mid-'70s, the Constitution was often compared to a periodical which went through successive editions.

Many observers feel the current bout of rapid-fire activism owes a lot not only to the abdication of responsibility by Parliament and the executive, but also to the fact that the two institutions appear to be the weakest ever in post-Independence India. It is pointed out, for instance, that the apex court did not show the same zeal for progressivism or concern for civil rights in 1976 when it failed to strike down the preventive detention legislation although nine high courts had done so.

But the courts seemed to be coming back strongly after the Emergency and in 1977 started the famous phase of public interest litigations (PIL) when even a plaint on a postcard was treated as an important PIL and acted upon. Public interest and social interest litigations reached a new high in 1985-86 when P.N. Bhagwati became Chief Justice of India. In a way, the current activism of the Supreme Court—most of which has been based on PILS in any case—appears nothing new. What is new, however, is that never before had the court managed to exert enough pressure on government bodies like the CBI to actually launch prosecution of political heavyweights.

Most believe that the heightened activism which is being seen now is actually the culmination of the phase which began in the early 1990s when M.N. Venkatachaliahwas at the helm of the Supreme Court. The phase saw the court getting angrier and angrier and coming down heavily on the Punjab Police in cases relating to custodial deaths and other forms of human rights violation. In the field of environment, aggressive decisions, closing down mines and industries, were handed down. And the bureaucracy was repeatedly hauled up for neglecting its duty.

The new-found dynamism and candour could have something to do with a systemic correction which the Supreme Court itself forced on the executive. In 1993, the Supreme Court delivered a landmark judgement regarding the appointment of judges. As senior counsel Indira Jaising points out: "Until then the executive appointed judges in consultation with the judiciary. Now the Chief Justice appoints them, in consultation with the executive." The balance of power between the executive and the judiciary clearly tilted in favour of the latter after that judgement.

But not everyone is happy at the turn of events, and the political class is getting greatly upset. All India Congress Committee General Secretary B.P. Maurya does not bother to hide his pique. His demand that the Representation of the People Act be amended in the wake of the Supreme Court's recent judgement on Hindutva is indicative of a longing for the days when judicial pronouncements could be nullified by subsequent constitutional amendments by Parliament. Maurya charges the courts with "sometimes deviating from the main issue." "Law is being interpreted in such a style that law is being made in the name of interpretation," he points out. He is also strongly opposed to the court's intervention in administrative matters. "The Supreme Court would be more fruitfully occupied in clearing the crushing backlog of cases," is his cryptic comment.

The politicians see the interventionist role of the Supreme Court disturbing and have already set up informal contacts to arrest the growing activism and invasion of the judiciary into their domain. Recently, Lok Sabha Speaker Shivraj Patil met the Leader of the Opposition Atal Behari Vajpayee and CPI(M)'s Somnath Chatterjee to discuss the developments. The fear is that if the trend continues, the judiciary may feel emboldened to begin interfering in parliamentary affairs and upset the spirit of separation of power on which the Constitution is founded. The parliamentary arithmetic, in which the Government is far short of the two-thirds majority, and the fact that it is so close to general elections makes it difficult for it to do anything right now. In any case, no political party dare take a confrontationist attitude towards the Supreme Court because of the large backing the activism has aroused among the people. "The Government is malfunctioning so badly and the credibility of Parliament is so low that we cannot afford to take on the judiciary right now," admits a senior Opposition leader in Parliament.

The fact remains that the aggressive shift from judicial restraint to judicial activism is not entirely a healthy trend. Several prominent retired judges and legal luminaries are also worried. Former Chief Justice E.S. Venkataramiah admits that the judiciary has the right to come down on the other arms of governance—the bureaucracy and the legislature—when they exceed their limits, but feels that "now the judiciary is overstepping its limits". Justice Venkataramiah is a firm follower of the school of judicial restraint. "Who is there to point out it (the judiciary) is trespassing its limits? Restraint is not only graceful but also a necessity for the judiciary to maintain its credibility and respectability. The excess of the lower courts can be set aside by the high court and that of the high court by the Supreme Court. But how to set aside any excess of the apex court?" is the disturbing question he asks.

Former chief justice M.N. Venkatachaliah recently told a symposium that he does not see judicial activism as the solution. But he maintains that the worry about a judicial takeover is not justified. "The academic speculation that the judiciary is becoming all-pervasive is unfounded and the constitutional rights of the people are safe. The self-restraint of the judiciary will never let it go overboard," he insists.

Justice Lentin is not convinced: "If the judiciary is to tackle issues that the Government is supposed to, what happens to the average litigant? It is common for the civil cases not to reach hearing for 20 years." Another former judge of the Bombay High Court, Justice S.M. Daud, is similarly unhappy about the penchant for judicial activism. "Old cases are pending while headline-catching decisions are taking the judiciary's prime time. You cannot play the municipal sanitation inspector, vigilance commissioner, chief minister and judge at the same time," he says, and goes on to warn, "when the judge gets into a messianic mood, it is difficult to check (him). The worst ruler is a moralistic one. He becomes like a Seshan running wild—and making a mockery of himself."

Noted Bombay lawyer Aspy Chinoy sees it as a sign of the times. "In a political democracy there are no distinct demarcations of executive, judicial and legislative functions. One sometimes runs into the other's domain. In this case it is a sign of the times. If everyone is doing their job, it could be called an intrusion," he says.

But all said and done, most people are convinced that the virtual non-functioning of Parliament and the legislature has made it almost necessary for the judiciary to intervene heavily. While there can be no doubting that the extra-high profile of one arm (the judiciary) at the expense of the other two (the legislature and the executive) does disturb the fine balance which the architects of the Constitution had envisaged. And, in such a scenario, the judicial restraint advocated by Venkataramiah will have to wait a while. Till the two other arms have also undergone systemic corrections, it shall remain Advantage Judiciary