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"Inducing Judicial Activism Or Having Their Cake & Eating it Too"

 "Justice being taken away, what is State, but a band of robbers". St. Augustine          

 Of late there has been a fair amount of debate on 'Judicial Activism", some of it informed, much of it less well informed. Judicial Activism should not be looked at in standalone fashion. It has to be viewed against the backdrop of the vertiginous decline in the probity and conduct of the political class across the political spectrum - at the Centre as well as in the States. In fact, if one were to take a sounding as to which class the people of India dislike the most, it would hardly come as a surprise if the political class were to emerge as the most despised lot. That the judiciary itself has lost much of its lustre can hardly be cause for comfort for those looking up to the Courts.

      Attention is first of all invited to excerpts from a talk given on 2nd August 2006 to a distinguished audience on a theme relating to national security, good governance, jurisprudence and allied aspects:

    "Therefore, if one takes the line of thinking opened up by the Honorable Supreme Court to its logical conclusion one comes up with the dreadful deduction that today the biggest threat to the security of India might be the political class, full 20 percent of whose members happen to have criminal cases registered against them. If the percentage as given out by the Election Commission is right then the criminal class that has entered Parliament is perhaps one of the single largest blocks, although affiliated to political parties across the political divide.

     Leaving the rest of the country to fend for itself the political class cocoons itself in the security provided by gun-toting bodyguards paid for by the exchequer, irrespective of whether the persons so protected have a number of murder, dacoity or rape cases pending against them. …………… In all other countries the political class comes together in the face of national emergencies. In India they come together to undermine the decisions of the highest judicial bodies in the country. In no other country in the world are the decisions of the Supreme Court  - the final arbiter - overturned or thwarted as summarily as is presently happening in India".

            It is against this background that the debate on judicial activism should be entered. A distinguished (former) governor of the Reserve Bank of India had opined that it had been his experience that a large number of decisions at the highest levels of governance had not been taken in the national interest, but in the interests of the political parties, vested interests, or other such considerations (that did not augur well for the country)”. (Unquote)   

The abysmal lot of a large percentage of India’s population is there for all to see. Looking at India’s future in the face of the fast emerging global threats, what has the government done to meet these challenges? A few well-documented and incontrovertible examples highlight the national decline. The Government of India and the state governments have demonstrated their complete inability to save the flora and fauna of India – the forests are being decimated at an increasing rate; they have been poached routinely for over 50 years. In spite of spending thousands of crores of rupees the pollution levels in the Ganga and theYamuna might actually have gone up. These two rivers systems are famous for a variety of reasons. Should similar surveys be undertaken for many other waterways and water bodies the state of decline would be seen to be far worse. If left to the political class the national capital would be in shambles in less than a decade. One can go on in this vein indefinitely to show that laws are being flouted with greater and greater impunity, mostly by the legislators and people at the helm of affairs.  Law and order as understood in civilized society have virtually disappeared for the common man. As if the burdens of the aam admi were not already beyond his capacity to bear the politicians add to his woes by repeated bandhs that are a nightmare for the daily wage earner. Equality before the law is more in the breach than in practice. And yet the state governments who are the biggest offenders in this regard appear to be showing extreme reluctance to usher in the changes in police functioning as directed by the Supreme Court. It is incomprehensible that full 60 years after Independence the Government of India has not yet thought fit to amend the Police Act, a relic of the colonial regime that dates back to 1861.

            In this sea of dreariness and despair the higher judiciary has held out some hope for the people of India. If terminal decline has been arrested in certain areas of governance it is due to the yeoman service provided by the higher judiciary - in spite of glaring lapses in the past – and the Election Commission of India. They remain beacons of hope for India; and for many other countries that have started looking towards India. There should be no doubt in the mind of the political class that the public at large overwhelmingly supports most of the judicial interventions undertaken in recent years at the highest levels. It is certainly not in the long-term interest of Indian democracy that the judiciary be brought into ridicule by all and sundry, especially the political class.  

             Many of the political actions and decisions fall so patently foul of the tenets of the Constitution or the working of the constitution even under the degraded norms now prevalent in the running of the government that the courts have no choice but to step in. A few examples will suffice:

  • A chief minister of a state decides to give land rights to tribals without waiting for notification of the revised bill by the government at the centre. Needless to say that over and above the fact that the rules have yet to be communicated, the said legislation might itself be challenged in the highest court;
  • Enactment by state governments of reservations on the basis of religion in clear contravention of the framework of the constitution in this regard.

  Other examples can be cited where political parties when in power go ahead with outrageous enactments, or promises of enactments if voted to power, knowing full well that the courts would have no choice but to strike them down. In all such cases the political leadership unmindful of the long-term consequences of their decisions for coming generations or the national interest do so in full knowledge of the illegality or non-maintainability of their actions; being clear in their minds that the courts would strike them down. Vote bank politics at the cost of the national interest and, at times, the ecological well-being of coming generations is fast becoming the rule rather than the exception. By indulging in malpractices of this nature the political parties have found the way to eating their cake and having it too. By these means they not only provoke the courts to become judicially active to safeguard the constitution or the interest of the country as a whole, the politicians go a step further and denigrate the judicial intervention so induced; and thereby pretend to show themselves to be the champions of the narrow interests whom they wish to appease, placate, or simply to perpetuate their vote banks. Slowly, but surely, the governments (at the Centre and the States) are divesting themselves of the capacity to govern, thus forcing the judiciary to take up the slack in the face of the formers’ pusillanimity or partisanship.

The political class should sit back and take another look inwards, while they have the freedom to do so. By ganging up to undermine the judiciary they are on a path beset with great dangers. It is because of the benignity of the judiciary while dealing with cases of politicians at the highest levels that they continue to enjoy their freedom and ill-gotten gains. Should they willfully shake the edifice they could end up being the worst sufferers.

Oct 10th 2007
©Vinod Saighal



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