Even the executive sat back, dazed by the onslaught. It was only when Seshan, riding on a wave of populism, began threatening that he would not hold elections unless his condition for photo identity cards for every voter was fulfilled, did the realisation dawn that unless the man was checked, he could well cause a constitutional impasse; and the executive mustered up the required courage to clip his wings. The result was a new law expanding the Election Commission, with two other commissioners having equal powers. The public was aghast. The good man was being let down. Now with the Government nominees (everyone seemed to forget that Seshan himself was a Government nominee) having a majority, there was no way the Commission could function impartially anymore. Seshan’s own cry was the loudest on this score. However, the judiciary upheld the expansion.
The subsequent Lok Sabha and assembly elections have proven that the fears were grossly exaggerated. The expanded Commission worked fine. All that was missing from the poll scenario was the brazenness of the CEC.
Now it is the turn of the judiciary to ride the wave of populism. Once again, it is the growing cynicism vis-a-vis the political class which provides popular support for even some of the most audacious pronouncements by the courts of the land. Inherent in this brand of pronouncements is a propensity for sweeping generalisations in order to feed on this increasing cynicism. So much so that Additional Sessions Judge S.N. Dhingra’s comments in the TADA case against Kalpnath Rai branding the entire political class criminalised had to expunged by the Delhi High Court.
And one pronouncement that must be taken note of is the Patna High Court’s order in the fodder scam case asking a joint director of the Central Bureau of Investigation (CBI) not to report to his boss. The honourable court felt that the director was ‘interfering’ in the work of his junior official. Orders like these make it rather difficult for me to join in the general euphoria that the current burst of judicial activism has evoked. Even if the court was convinced that the report it had received after being vetted by the CBI director had hidden the full truth, the court could have well called for the complete report and taken a decision on it. It could have passed strictures against the CBI chief. But to tell a junior official that he was not to report to his senior is obviously going too far. Tomorrow, a court could well order the cabinet secretary or even a minister not to report to the Prime Minister. As the CBI’s special leave petition before the Supreme Court against this order points out, at stake here is the functioning of an important Government department which has its own logical chain of hierarchy. And the logic of this hierarchical chain of command is that the fate of an investigation cannot depend only on the perception of an individual officer but should be subject to the proper scrutiny and application of mind by a series of officers. What is otherwise the guarantee, the petition asks, that the angularities of a given officer will not result in a report biased for or against any person. This is not to argue that the courts have no business monitoring investigations against politicians. But it is surely presumptuous for the court to believe that it has the capability to do the actual investigations. A clear case of activism gone overboard.
What the courts should not forget is that the Constitution neither envisaged nor empowered the judiciary to take on the function of the executive. And if the courts expect to be treated with dignity by Parliament and the executive, they also must accord due respect to these institutions. If not, the backlash will be impossible to prevent. That could entail once again trying to foist pliant judges on the system, or constitutional amendments safeguarding Parliament’s interests—specifically from the judiciary. A confrontationist relationship between the three vital pillars of our democracy cannot bode well for the polity.
And finally, a recap of what Justice Bhaktavar Lentin, a former judge of the Bombay High Court, told this magazine a little over six months ago: "If the judiciary is to tackle the 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." Admitted that the cases of the common litigants do not make the headlines. But is that enough reason for them to remain ignored? Shouldn’t the judiciary also make sure that their judicial zeal also provides speedy solace in such cases? Our lordships would do well to tarry a while and think of this too.