If the courts do wish to be activist, they
have more than enough of an agenda within their own sphere of activity
without encroaching on legislative and executive jurisdictions.
On February 18, at a function of the High Court Bar Association in
Nagpur, Lok Sabha Speaker Somnath Chatterjee warned that attempts by
the judiciary to usurp the onerous responsibility of the country’s
governance would have serious implications. The several organs of
India’s democracy have their respective spheres; the courts should not
encroach on the jurisdiction of the legislatures. Noting that up to
about 20 per cent of judicial officers are corrupt, he u rged the
courts to dispense affordable and speedy justice to the poor. These
concerns were expressed, of course, after the Supreme Court itself had
urged caution on lower courts over excessive judicial activism.
The activism causing discomfort among analysts, politicians and even
the Supreme Court itself stems from judicial romanticism in parts of
civil society, political cowardice on the part of political leaders and
parties, and of course judicial overreach on the part of some judges
and courts.
Government is about making and implementing public policy choices.
These are neither always easy nor right. Like individuals, governments
make mistakes. In a democracy, the task of making decisions on behalf
of the people is delegated to elected representatives who then answer
to courts for the constitutionality and to the people for the
consequences of their choices.
“Judicial romanticism” is the habit of mind that always looks to courts
as a solution to any problem. The romanticists discount political and
diplomatic alternatives. In the U.S., they would have prosecuted
Richard Nixon for Watergate. In New Zealand in the mid-1980s, many were
unhappy that the government succumbed to French economic pressure and
released their intelligence agents convicted of the “Rainbow Warrior”
bombing. Many South Africans were unhappy with the amnesty granted to
Apartheid-era criminals by the Truth and Reconciliation Commission.
Some in Britain would like to see IRA terrorists brought to book even
at the cost of imperilling the peace accords. And we see it within East
Timor in calls for no compromise with the murderers of 1999.
The functions of rule-making, rule-enforcement and rule-interpretation
are separated into the three institutions of the legislature, the
executive and the judiciary which operate in demarcated jurisdictions,
are staffed by different individuals, have distinctive rules of
procedure and work methods, and are answerable to different bodies. In
recent decades, Indian politics has suffered from two unfortunate
impulses. The first is to try to solve a problem of implementation with
a fresh piece of legislation: the equation just does not compute. If
the bureaucracy, the police and courts are not implementing laws on
caste discrimination, for example, a new law will not plug the
slippage; it merely adds another law to the long list of those being
ignored because of discrimination, incompetence or corruption.
A second pathology of Indian politics is to transfer to the judicial
arena problems and conflicts that require resolution in the political
arena. Let us consider an interesting but telling example. The Supreme
Court of India has been vested with the power to render advisory
opinions on any question of fact or law that may be referred to it by
the President.
This differs from ordinary adjudication in that there is no litigation
between two parties and the advisory opinion of the court is neither
binding on the government nor executable as a judgment of the court.
The U.S. Supreme Court decided early on against such a role, on the
argument that it would encroach upon the legislative function and
thereby negate the separation of powers that underpins the U.S.
Constitution.
This gives a soft option to the Indian government on some politically
difficult issues. The judiciary exists to interpret laws, expound the
Constitution and ensure that the rule of law prevails. The
responsibility for maintaining law and order vests in the executive arm
of the government. The Cabinet can weigh popular opinion in the balance
before deciding upon issues of public policy. The judiciary cannot
decide upon questions of belief, opinion or political wisdom, nor
pronounce upon questions of history, archaeology and mythology. The
Cabinet cannot shift the burden of responsibility to the courts for
matters of policy for which the government (or Prime Minister) of the
day is too weak, timid or confused to make and implement a firm
decision. The judiciary cannot compensate for the inadequacies of
governments or the failure of the political process.
The Government of India had referred aspects of the Babri Masjid
dispute to the Supreme Court for an advisory opinion. Since there was
no legal point as such at issue, there was a danger that the referral
would politicise the judiciary instead of resolving a quintessentially
political problem. On October 24, 1994, a five-member bench of the
Supreme Court ruled that the reference to it, of the question of a
temple having existed at the disputed site in Ayodhya, was
“superfluous, unnecessary and does not require to be answered.”
In recent years, the courts have steadily shed such inhibitions.
Judicial overreach may be rooted in part in the flattery of public
faith in and frequent resort to the judiciary; in part in the
embarrassed memory of having capitulated so spinelessly to the
executive during the notorious emergency in 1975–77; and in part in
being emboldened by the failure of political will on the part of
governments to address and redress the many serious ills afflicting
society.
But, if the courts do wish to be activist, they have more than enough
of an agenda within their own sphere of activity without encroaching on
legislative and executive jurisdictions.
The most serious judicial shortcoming is excruciating slowness. In
1982, Justice V.R. Krishna Iyer famously remarked that “Once you start
a litigation, please execute a will, naming the person who will
continue the case in court.” The number of cases pending in India’s
courts runs into tens of millions. I do not know the most recent
statistics. But when I last did the research several years ago, the
Supreme Court of India was accepting 1000 times as many cases per year
as its U.S. counterpart. It should be more selective and avoid becoming
mired in judicial trivia, taking up only the really significant cases
and dealing with those in depth.
Politicisation of judiciary
Part of the explanation for the multiplying backlog lies in the
politicisation of the judiciary at all levels, part in its corruption
at lower levels: justice delayed can mean pockets filled. Is the
Indians’ fondness for litigation to be explained by the fact that they
use courts not to settle disputes but to further them? A more
charitable interpretation is that the frequency and number of resorts
to the courts in India is testimony to the people’s faith in their
judicial system compared to the other institutions of government.
Yet frivolous, motivated and mischievous cases can be launched at
little or no cost to plaintiffs that exact a heavy toll on the
defendants. Earlier this year, a frustrated Sania Mirza — India’s best
ever woman tennis player — decided to stop appearing in tennis
tournaments in her own country. The 21-year-old has simply had enough
of disputes involving how she dresses and whether she is respecting or
insulting the national flag. Her case is not an exception. Rather, it
is symptomatic of the race to competitive intolerance where political
or religious leaders find it politically profitable to mobilise the
rage of their community against targeted individuals. This too needs
fixing as part of the broken judicial machinery. The courts should
protect the likes of Mirza and Taslima Nasreen from zealots and
fanatics.
The frustration with the glacial pace of the judiciary and the costs
and corruption associated with it all sometimes drive crowds into
taking the law into their own hands and lynching suspects — who have
not even been tried, let alone convicted after due process — because
they fear that criminals will bribe and bully their way out of the
justice system. Reacting to one such incident recently in Bihar,
President Pratibha Patil reportedly said “The realm of judicial
administration is not without its own share of inadequacies and
blemishes.” The judiciary’s most urgent challenge and pressing task,
therefore, should be to clean its own house first.
India’s key democratic institutions enjoyed a relatively long gestation
period. If independent India was going to give meaning to the fine
sentiments expressed in its Constitution — if it was to protect the
minorities, give content to equality of opportunity, establish that
democracy meant that all votes had equal value and that all citizens
were answerable in court — the judiciary, led by the Supreme Court, had
to provide firm and clear guidance. Despite occasional failures of
nerve, by and large, it has done so. For the rule of law to prevail,
the judiciary must be seen to be universal, impartial and impersonal —
but also restrained. This is a delicate and challenging task, but not
one beyond the capacity of India’s learned judges.
http://www.thehindu.com/2008/03/04/stories/2008030454830800.htm
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© 2008, The Hindu.
