The fifty-year test

Two score and ten years ago, India´s founding fathers gave the country a parliamentary democracy with a fine system of checks and balances. Half a century into freedom and most of its institutions lie in shambles. The people elected to keep them going are burning themselves out on the treadmill trying to retain their position, power and means of personal aggrandisement. One no longer anticipates visionary legislation of far-reaching consequence from the elected representatives. Neither has the executive shown itself to be capable, either in the Centre or in the states. Tales of scams and widespread corruption are too well known to warrant repetition.

Only one institution appears to have withstood the 50-year test—the judiciary—the watchdog of the other two arms of governance. The Constitution of India expressly balances the three organs and allows the judiciary to interfere with the powers of the executive and legislature only when the liberty of the individual is at stake. However, the justices are today stepping in to make laws, establish policy, and initiate action to cover for inept and inactive ministers and parliamentarians. It is the courts that are formulating rules to run prisons, homes for destitute women and the mentally ill; again, it is the courts that are setting schedules for examinations, ensuring resettlement of evicted pavement dwellers and displaced persons from dam sites, and saving national monuments, rivers and forests from environmental degradation.

The judiciary has also taken upon itself the task of cleaning the Augean stables of political corruption in the country. At least six cases dealing specifically with political corruption are before the Supreme Court of India, the most celebrated being the Jain Hawala case in which bribes were paid to prominent politicians through a business family with laundered money. The judges have literally been forcing the executive to report to the court on this matter. The judges have also declared their intention of wiping out black money from politics.

As the justices raise dust, are they encroaching upon executive and legislative preserves, and disrupting a delicate system for momentary relief? Is the so-called ´judicial activism´ actually unconstitutional? Justice J.S. Varma, before whom the Jain Hawala case is pending and who is designated to be the next Chief Justice of India, maintains that this flurry of activity is all part of the constitutionally delineated function of judicial review. Accordingly, the judiciary is the ultimate interpreter of the constitution; it has the task of determining the extent of power allocated to each branch of government.

Justice Varma told a SAARC law conference in New Delhi that judicial activism is a constitutional imperative because of the role assigned to the judiciary by the constitution itself. Not only interpreting the constitution as a stand-alone document, but interpreting it to respond to the felt needs of the time, is an integral part of judicial function, he said. And that interpretation has to be made keeping in mind the ultimate constitutional goals of social, economic and political justice for all.

What, then, stops the judiciary from becoming all-powerful and arbitrary in its functioning?  According  to Justice Varma, the very fact that the court acts only on cases brought before it acts as the first check; secondly, the judges function in open court in the presence of lawyers ensuring complete transparency; and the third check is the opportunity for fair comment by anyone so minded.

Yet—and let this be read as fair comment—there is the inevitable slip twixt the cup and the lip. Although there is all-round public applause for the crusading role of the judiciary in India today, doubts are creeping in as to how long the last bastion can hold out in the face of overwhelming odds. The whole country is one large cauldron of mismanagement and corruption, and the courts are just not equipped to tackle the minutiae of executive and legislative governance. Besides, given that many public officials—and institutions—are past learning, should another way be sought to set an example rather than through the judiciary taking on the role of the two other organs?

There is also the question of the justices themselves. Given that the probity, rationality and wisdom of individual judges may not be of the same level as of a Justice Varma, is there possibility of miscarriage when the agenda for judicial activism is picked up by those less capable? Then, there is the recent spate of decisions which indicate that the courts may be overusing contempt provisions.

In early February, Bal Thackeray, the maverick Shiv Sena leader, was handed a week´s jail term by the Bombay High Court for telling a public rally that an unnamed judge had demanded INR 35 lakhs for passing judgement in a litigant´s favour. Last year, another court imposed a ban on public demonstrations against judges accused of corruption or misbehaviour. A couple of months ago, a bench headed by none other than Justice Varma shot down a public interest litigation petition challenging the appointment of a judge of dubious reputation to the Tamil Nadu High Court. The bench refused to entertain the petition on the ground that judicial appointments could not be subject to judicial review. In 1994, the same Justice Varma made a ruling which took judicial appointments completely out of the hands of the executives and into those of the judiciary. In 1992, the impeachment process of judges, constitutionally vested with the legislature, was brought within the pale of judicial review.

Key judgements that allow courts to override existing laws, punish certain offences without trial, and allow them to go into the reasons for the central government´s imposition of central rule on a state, also form part of what some have begun to recognise as an alarming trend. Also to be seen is whether it is the judicial system which is acting with restrained activism, or whether that has been only the legacy of a few upright and capable judges. There is no saying what will happen if bad judges get judicial activism into their heads; the Supreme Court then will have more than its share of distasteful appeals on its hands.

Take a look at the experience. Would the Jain Hawala case have had such significant repercussions if it had continued to languish before the bench of former Chief Justice M.N. Venkatachalaiah and not fallen into the docket of Justice Varma? And would the whole set of path-breaking environmental legislation have been possible but for the zeal of Justice Kuldip Singh?

While the judiciary has been assuming more and more power by stepping into the vacuum created by a dysfunctional executive and legislature, it is clear that its accountability has been correspondingly on the decline, notwithstanding what Justice Varma had to say to the South Asian lawyers´ meeting. This in itself is a dangerous and insular trend. Mixed with the heady elixir of public approval, it could spell the beginning of the end of a committed and responsible judiciary.