Order! Lances Atilt!

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.”

—Benjamin Cardozo (1870-1938), noted American jurist, in The Nature of the Judicial Process

In the black money order, the judges play on journalist Bob Woodward’s informant in the Watergate affair: “Follow the money”. It goes on to say, “The scrutiny and control of activities by the state in the public interest, as posited by modern constitutionalism, is substantially affected by the state ‘following the money’.” With finality, the court constitutes an sit to take over the matter.

In the Salwa Judum case, the order expounds on Conrad’s Heart of Darkness, quotes its central character Kurtz’s “The horror! The horror!”, and refers to the novel’s mythic commingling of three kinds of darkness—the darkness of the human struggle for existence, the darkness of colonial expansionism, the darkness of human evil. It uses the novel’s theme to make an overarching statement on state-supported capitalist expansion into mineral-rich tribal lands and links it implicitly to the Maoist rebellion.

Did not the judges’ language contain a political reading? Were they intruding on the bailiwick of the executive by intervening in the face of non-performance? Were they, coloured howsoever lightly by ideology, behaving like knight-errants?

In the prevailing mood of cynicism—fuelled by the government’s failure to spike black money and its stubbornness on a draft Lokpal Bill acceptable to Anna Hazare’s team—the orders seem to work like a tonic. But jurists and lawyers are reading them closely, pondering how good or bad in the long run is the correction of systemic wrongs of the executive through judicial enthusiasm—or, as some say, judicial overreach.

Judges speak through their judgements. Many recent judgements, leading jurists say, go clearly beyond the scope of the case. It’s not merely about the strained linking of Milton or Shakespeare or the Bhagwad Gita to cases involving, say, a sanitary workers’ union. It is about obiter dicta, observations by judges on points of law not directly in issue, but nevertheless made with persuasive authority. Jurists say these recent orders could—perhaps should—have been worded in a way that did not display the palest shade of bias or overreach. Justice J.S. Verma (see interview), a former CJI, who quotes Cardozo in his book New Dimensions of Justice, says: “I am concerned about the independence of the judiciary and such judgements have the potential of a ganging up of the powers that be against the courts. That will be a sad day, when it happens.”

Justice A.P. Shah, a former chief justice of the Delhi High Court, does not mince words: he calls the order on black money an instance of judicial overreach. “The judges should have intervened to activate the government, they should not have been active in the formation of an sit, which I believe falls within the ambit of separation of powers as envisaged in the Constitution,” he says. The order, he avers, squats in the executive arena.

Ashok Desai, a former attorney general of India, who successfully argued the case resulting in the verdict against the Salwa Judum, says, “In many ways, the power of the judiciary is in inverse proportion to the power of the executive. The weaker the executive, the greater the burden on the judiciary to take over.” Overreach, he says, occurs only when the judiciary intervenes even though the executive is fulfilling its obligations; in his case, as in the black money case, the executive had failed to persuade the judges that it had discharged its duties.

“Perhaps the court felt the failure was not of lack of power but of lack of the will to exercise power,” says Desai. “When a court forges its response to novel situations, it may be uncertain how effective the remedies it offers will turn out. But it surely can’t throw up its hands.”

Unlike jurists, politicians are predictably reacting on the basis of whether they are in opposition or in government. Nirmala Seetharaman of the BJP says the order on black money is not entirely uncalled for. “Given government inaction,” she reasons, “it proved necessary. It has come more from being constrained to act than from wanting to take over.”

She is careful to differentiate her opinion on this order, going against the Congress coalition at the Centre, from the one on Salwa Judum, going against the BJP government in Chhattisgarh: “Questions about the judiciary taking over the powers of the legislature or executive are worrying, but the court has acted very responsibly in the black money case.” It may not have been entirely correct, she says, in the Salwa Judum case.

Abhishek Manu Singhvi, spokesperson of the Congress, whose government at the Centre is taking a direct hit in the black money case and, given Prime Minister Manmohan Singh’s neo-liberal agenda, a ricochet from the Salwa Judum case, says: “The Constitution gives the last word to the judges, irrespective of the separation of powers. The very entrustment of the last word to judges makes them inherently more powerful than other co-equal organs of the state.” Even so, he says, there is an expectation of self-denying restraint from individual judges. “Many judges abide by the principle and spirit of it, but some cross the lakshmanrekha,” he says, his guardedness activated by the possibility of the judiciary and the executive circling each other to recalibrate their radii of power and space in the days ahead.

There are some who hold the view that, with close to 60,000 cases pending in the Supreme Court, its judges should not be taking up the big ones for speedy adjudication and scripting drama in their orders. That, they say, amounts to playing to the gallery. For now, popular support seems to be with the courts—whether or not judges be knight-errants.