A Tribune Debate
Judges vs Judges
Make the Constitution a living reality
by Harish Salve
The debate on judicial activism has been raging with varying intensity over the past few years, and has acquired a new life as it were, by the observations in a recent judgment of the Supreme Court. The underlying message of the critics deserves to be articulated plainly – that two courageous judges of the Supreme Court have candidly admitted that they were doing something horribly wrong and now its time the courts limited themselves to the role of a dispute resolution tribunal, leaving the politicians and the civil servants to deal with the woes of the people. The judgment, if read carefully, says nothing of the sort.
Is judicial activism — to wit — entertaining PILs that seek redress against executive (and at time political) apathy a deviant from the constitutionally ascribed role of the court? Is the power of judicial review into such apathy too dangerous to be left to these judges, who should now stick to deciding civil suits, tax appeals, criminal cases and the like?
Indisputably on occasion the High Court and (at least once or twice) the Supreme Court may have crossed the line — these are errors. If the court should stop entertaining PILs because they have erred on occasion, then Parliament and state legislatures should stop making laws because they too have made some laws that were unconstitutional (Parliament affirmed the phoney emergency only to humour Mrs Gandhi — yet continues to enjoy all its powers).
The governors should not appoint chief ministers because of the way in which some governors have abused this power, the President should not dismiss state governments for the manner in which this power has been misused, and most of all the powers of the ministers taken away for reasons far too many to count. If institutions were denuded of their powers for their follies, democratic government may as well be wound up.
The constitution confers the powers to issue writs upon both the High Courts and the Supreme Court (in the latter case only to enforce fundamental rights), without any express limitations upon its exercise. The courts have evolved rules of self restraint, to respect the separation of powers, and to bring order and discipline into the exercise of this vast power.
One archaic rule, that the court would entertain a petition only to vindicate a private wrong (i.e. to give relief to a person directly affected) was cast away in its country of origin when the English courts entertained a petition by Mr Blackburn who sought an enforcement of the laws against p*rnography in Soho. If the English judges could entertain a “PIL” why should Indian judges lag behind.
Another rule was that the court would not “interfere” with executive or legislative functions –in the old days, judges expressed helplessness in dealing with executive apathy. But where fundamental rights of citizens are at stake, the modern judge considers it his duty to issue appropriate directions to the executive to do their job as mandated by the law and the constitution, without fear and without favor. The rule of non-interference has been relaxed but only in those areas where the matter can be resolved by “judicially manageable standards”.
Where sensitive constitutional rights suffer for want of legislative measures (e.g. the rights of women to gender justice, rights of students) the courts have issued directions that formulate a code of conduct pending framing of rules — all these have been rooted in Art. 21 — the right to life and liberty, or article 14 — the right to equality.
The classical writ of mandamus is a direction to carry out a statutory duty- and that writ was issued to enforce environment laws made by Parliament to protect the air, the water, the wildlife, flora and fauna, and the forests.
The courts do not decide policy, but if enforcement of fundamental (or other legal rights) require the executive or Parliament taking such policy decisions, the court acts as a catalyst — it nudges the decision making process. These broad lines may have been crossed on occasion — but the task is so enormous, a few errors en route are inevitable.
The shrill debate has been sparked by the steadfast refusal of the court to yield to political and populist compulsions (latest example is the reservation issue): The instances of the court crossing the line is a convenient stick to beat them with. The court has also taken upon itself to enforce transparency(from hawala to fodder scam). It is this that upsets the political class, trying to survive in a fractured polity where the politics of coalitions calls for incessant compromises.
The sealing case is a good example. The sorry state of the capital is a tribute to lack of governance, a system in which outdated town planning laws were selectively enforced against those who could not “afford” to violate them, while those who had the “resources” could violate the law with impunity — undoubtedly for a price. The order of the court left the government looking red faced and forced a rethink on planning — and quickly at that! Reasonable laws and fair enforcement would displace a corrupt regime. The court spoiled a nice party.
In a working democracy, there should no occasion for the court to deal with such issues. If the High Court has to deal with nursery admissions, it is because the government (who is supposed to oversee education) did nothing to address the trauma caused to little children by the “interview” — which they were ready to condemn in court!
If the court has to give directions to reform the police system, it is because the political system refused to implement the reforms recommended by one police commission after the other for the principal reason that it would dilute the control of the politician over the police force. Scratch an order of the court, and underlying it you will find a sorry story of bad governance.
There is today a serious imbalance upon the institutions, and the public expectation from the judiciary is scary. If the situation is not repaired, a day will come when the people will feel let down by the judiciary — the judges can only do so much, they cannot and believe me — will not — run the government.
Other institutions of governance have to be rebuilt if democracy has to survive — until such time as that happens, the judges will have to soldier on to make the constitution a living reality for the common man — in such measure as they can. PILs must go on for the present, the controversy and criticism notwithstanding.n
The writer is a senior advocate, the Supreme Court of India.
