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The Third Wave of Judicial Activism: Overturning the Political Process

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A recent Supreme Court order restored the erstwhile Congress-led government of Arunachal Pradesh of Nabam Tuki. The order is both questionable in its rationale and speaks of the dangers of the increasing judicial overreach. The fact that the very next day, the state Governor ordered Nabam Tuki to prove his government’s majority on the floor of the assembly by the following day, should come as a rude wake-up call to the long-protected sanctity of the Supreme Court, since the Governor’s action displays disenchantment of the political process with the judicial decision.

There have been a series of orders and judgements by the courts that show that the judicial interference with the policy-making processes of the executive and the legislature has intensified in the recent years. However behind this intensification is not the mere policy overreach of the courts – which has been an issue for the last 25 years – but its new political overreach. It is this new kind of judicial overreach that threatens to spell the end of the apparent moral sanctity of the judiciary. The decline is captured aptly in Finance Minister, Arun Jaitley’s statement that “step by step, brick by brick, the edifice of India’s legislature is being destroyed” by the judiciary.1

The reasons behind this lie in a system of intellectualized governance encouraged by regimes like the Congress and the AAP that promote the dictatorship of the technocrats and has led to the sharp autonomy and politicization of what used to be neutral-government institutions. In the case of judiciary, this further combines with the failure of the judiciary to understand that, irrespective of whether it is right or wrong, it must desist from interfering in the politics of the country and the policy work of the government.

From Judicial Activism to Political Overreach

The evolution of the Indian judiciary in the post-Independence period traces its history from being a mere passive third arm of the government (mainly during the Nehruvian period) to being in a mode of institutional difference with the government (during the early Indira Gandhi period) and finally of assuming the mantle of an activist judiciary (after the PIL was launched and citizens supposedly began to engage with the judicial process).

During the Nehruvian period, the judiciary was seen as upholding the interests of the elite landowners and the propertied classes and had little to do with social justice. However, after the 1970s, during the phase of Indira Gandhi government, there was a marked change in the judiciary’s relationship with the executive as the court began to intervene in social matters, sometimes overriding executive authority. This became even more pronounced after the Emergency phase, when the judiciary and the executive became actively opposed to each other.

With the launch of the Public Interest Litigation (PIL), the judiciary’s power of review was transformed into judicial activism. The PIL became an instrument whereby the judiciary was seen as privileging the rights of the poor who previously had little access to the courts. It was based on procedures that were non-adversarial, epistolary jurisdiction (whereby, the court could accept petitions through letters), and where poor had a locus standi. The judiciary was now seen as supporting the pro-poor Directive Principles as opposed to the individualistic Fundamental Rights. Many judges themselves, like Justice PN Bhagwati, have characterized this activist judiciary as supporting, not merely the PIL, but the more socially-involved Social Action Litigation (SAL).

The activist mantle of the judiciary was also supported by the launch of the era of coalition politics post-1989, which weakened the power of the executive to take politically difficult decisions in order to please their constituencies, thereby enhancing the power of the judiciary to assume the role of social and developmental activism.

However, if this evolution of the judiciary was really that progressive then how is it that the net result we see now is a worsened delivery of justice and a corrupt regression of the judiciary itself?

This is because the image of an activist judiciary is a very polarized and romanticized version of judicial history that has come down to us – mainly from the Left-liberal intellectuals like Upendra Baxi, Rajeev Dhawan, Indira Jaising et al. In reality, the post-1985 era of ‘judicial activism’ had nothing to with the citizens or the poor and everything to do with the activists. It marked the beginning of the rise of secular, Left-oriented intellectuals and activists who began to take-over the perspectives of the judiciary and many of the autonomous regulatory judicial institutions. Combined with its status as the supreme upholder of the Constitution, this provided a life of its own to the judiciary and it began to intervene freely in the policy matters of governance, which should have been the domain of the executive and the legislature.

This judicial activism has continued steadily for the last 25 years and has now precipitated into something completely unparalleled and very regressive – the judiciary has started playing politics for the last year and a half. And the fact that it has gone unnoticed in the media shows that the trend is dangerously insinuating itself in our society.

Dangerous Judicial Overreach

This trend is becoming more visible now because the Modi government is taking strong corrective action in dismantling the false politics that got institutionalized in the name of secularism and liberalism. However, the power of judiciary has gone unchecked for a long time.

Gradually, since the 1990s, the judiciary has moved on from the phase of PIL to ‘public cause litigation’ – an apt description for the kind of events it has been intervening in. These events, by no means, constitute a ground for any kind of legal action by the court, yet the judiciary, on the pretext of upholding public interest, has been issuing numerous orders and directives in these areas. Since the 90s, it has issued judgements in a range of everyday areas, covering issues like automobile emissions, wearing of seatbelts and helmets and dealing with the menace of monkeys!2

It has intervened actively in three main spheres where it has no business interfering: national security, governance/development and politics. Of these three, the spheres of national security and politics are now overlapping.

In politics, the apex court and the High Courts have actively intervened in the proceedings of the state assemblies to overturn decisions by elected governments to impose President’s rule – in Uttarakhand and Arunachal Pradesh – despite Article 212 clearly stating that the courts cannot inquire into the proceedings of the legislature.

In terms of national security, the Court, in 1993, issued orders on the conduct of a military operation in Kashmir, where the army had, as a matter of strategy, restricted food supplies to hostages. The court ruled that food of 1200 calorific value should be supplied to hostages, thereby prompting an army general to write, “For the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”.3

In terms of governance/development, the judiciary has been issuing pronouncements and directives that have only served to duplicate work that is already being done or to help establish its own self-importance. For instance, recently the Chief Justice of India (CJI) pronounced that the polluter pays principle should be applied to the US and not to India in the climate change regime. While the position is correct and in tune with the government’s climate change policy – it is irrelevant whether the position is correct or not – there was no need for the court to assume a moral position on a policy issue, least of all a foreign policy issue. What if, tomorrow, the Court – like in trade negotiations – were to spell out a stand that compromises the sovereignty of the country?

In the domestic sphere, the judiciary recently intervened in yet another environmental issue by directing the government to setup a National Disaster Mitigation Fund, even though national and state disaster response funds already exist. The courts should realize that nothing will come of asserting their power by directing the government to set up more institutions other than creating further opaqueness and institutional burdens.

Prior to that, when the Supreme Court ordered to move the Indian Premier League out of Maharashtra given the drought in Latur, the decision was again seen as the unnecessary encroachment by the Court in the sphere of the executive.4

Similarly, it was again overwheening arrogance by the apex court which propelled it to issue directives against pollution in Delhi, by doubling the entry tax on trucks entering Delhi, and by, recently, banning diesel vehicles in the city.

Now, the court is even meddling in trivial everyday governance problems like fixing air connectivity and helping in sports nominations – do the people really want a meddlesome unelected judiciary in their daily lives?

Even though the Court’s intervention in environmental issues is a mix of progressive and unnecessary, by interfering in these governance matters, it is transgressing its own boundaries and increasing its own burden. What right did the CJI have of emotionally cornering the government on the judicial backlog and pleading for more appointments, unless the apex court is bent on transforming itself from a limited law and order institution into a complex political one?

Moreover, the Court’s rift with the executive over the issue of appointment of judges – the government has refused to allow the appointment of judges till the Memorandum of Procedure (MoP) which gives a say to the government in the process of appointment, is finalized – shows that the judicial system is bent on remaining shrouded in a non-transparent and non-accountable functioning, even as it keeps on expanding its ambit of power.

And from where does it derive all this power? The apex court has original jurisdiction only to entertain petitions for breach of fundamental rights under Article 32 of the Constitution. It is only when it tenuously combines this Article with either Article 21 (Right to Personal Liberty) or Article 14 (Right to Equality before Law) that it derives the so-called moral authority to intervene in daily matters on the behalf of citizens, when, in reality, there are no legal grounds involved in such petitions except the imperative of better governance.5

All these cases show that often the Indian judiciary takes decisions to assert its own power and claim absolute, unquestionable moral authority. The more it does this, the more it is being rejected by the country; for, it is simply acting in an autocratic manner and exceeding its boundaries. In February this year, a Congress magazine challenged the fact that the judiciary is often above question and reproach and issues contempt of court notices arbitrarily to people who dare to question its self-assumed authority – its recommendation was that this needs to change and we should be able to question the judiciary.

This is only fair. The courts have brought this criticism on themselves by jumping into the fray of politics and seeking more autocratic power. It was already rife with corruption, inefficiency and delaying and denying justice, for a long time. But now, an uglier aspect is coming to the fore.

The True Relevance of the Judiciary

As the events unfold and the judiciary falls into its own power-trap, it will increasingly become clear that, for decades, our institutions of nation-building have been built on a flawed foundation. Not only have they been built to actively promote organized selfishness, but are also beset by the cruel irony of giving recognition and credibility to social disorder. The police state which is a product of our institutions is nothing but a reaction to the deteriorating national character, and instead of tackling the roots of the degrading collective consciousness, becomes a part of the general problem.

In this apparatus of the state, what is the true value of the judiciary? If we trace the evolution of the spirit of the judicial system, we will find that it does not at all deserve to be vested with the kind of moral authority that it has claimed since the dawn of the modern judicial system.

In ancient India, there never was an independent legal system in place – the concept of ‘rule of law’ is a uniquely modern, 18th century British construct. Instead, what prevailed was the ‘Dharma’. Dharma did not constitute a set of codes or rules that could be imposed on the society and the state by some institutional authority – as the present judiciary does. Instead, Dharma lay in the internal, organic, self-evolved processes through which the community governed itself and the King. It was as the civilization departed from its Golden Age and became more and more intellectualized and went farther away from the Truth of intuition that Dharma needed to be enforced, by the Pandits, on the King. Even then, the rule of Dharma prevailed as it was never the task of the Pandits to promulgate the Dharma. The society was still not so recalcitrant.

Since such were the conditions during the ancient times, where was the need of a judiciary? The modern judiciary is not only a product of the collective degradation, but is also a part of it. The basis on which it sets apart the true from the false in delivering justice – by audaciously laying claim to objectivity – is based on a process of reason, instead of being rooted in a higher authority. But then reason is simply an instrument that can be used to logically justify anything – wrong or right. And so, the modern law is actually blind.

As Sri Aurobindo wrote:

“Under a civilised disguise these Courts are really the mediaeval ordeal by battle; only in place of the swords and lances of military combatants we have the tongues and technicalities of lawyers and the mutually tilting imaginations of witnesses. The victory is to the skilfullest liar and the most plausible workman in falsehoods and insincerities. It is largely an elaborate pitch and toss, an exhilarating gamble, a very Monte Carlo of surprising chances. But there is skill in it, too; it satisfies the intellect as well as the sensations. One should rather call it a game of human Bridge which admirably combines luck and skill, or consider it as an intellectual gladiatorial show. In big cases the stake is worthy of the play and the excitement, a man’s property or his life. But woe to the beaten! In a criminal case, the tortures of the jail or the terrifying drop from the gallows are in prospect, and it is rather the hardihood of guilt than the trembling consciousness of innocence that shall best help him. Woe to him if he is innocent! As he stands there, – for to add to the pleasurableness of his condition, the physical ache of hours of standing is considerately added to the cruel strain on his emotions, – he looks eagerly not to the truth or falsehood of the evidence for or against him, but to the skill with which this or that counsel handles the web of skilfully mixed truth and lies and the impression he is making on the judge or the jury. A true witness breaking down under a confusing cross-examination or a false witness mended by a judicious reexamination may be of much better service to him than the Truth, which, our Scriptures tell us, shall prevail and not falsehood, – eventually perhaps and in the things of the truth, but not in the things of falsehood, not in a court of Justice, not in the witness box. There the last thing the innocent man against whom circumstances have turned, dare tell is the truth; it would either damn him completely by fatally helping the prosecution or it is so simple and innocent as to convince the infallible human reason of its pitiful falsity. The truth! Has not the Law expressly built up a hedge of technicalities to keep out the truth?”6

References:

  1. Livemint. 2016. Livemint. May 18. Accessed July 16, 2016. http://www.livemint.com/Opinion/lPqfldPjTc9t4aBYupFZKK/The-judiciary-is-shifting-the-balance-of-power.html.
  2. Andhyarujina, T.R. 2016. The Indian Express. June 1. Accessed July 17, 2016. http://indianexpress.com/article/opinion/columns/arun-jaitley-judicial-activism-supreme-court-2828018/.
  3. Ibid.
  4. Livemint. 2016. Livemint. May 18. Accessed July 16, 2016. http://www.livemint.com/Opinion/lPqfldPjTc9t4aBYupFZKK/The-judiciary-is-shifting-the-balance-of-power.html.
  5. Andhyarujina, T.R. 2016. The Indian Express. June 1. Accessed July 17, 2016. http://indianexpress.com/article/opinion/columns/arun-jaitley-judicial-activism-supreme-court-2828018/.
  6. Complete Works of Sri Aurobindo, Vol.12, pp.47-48, Sri Aurobindo Ashram, Pondicherry
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