The Scale Tilts

At the recent Chief Justices Conference, while Chief Justice of India (CJI) H.L. Dattu made the reaching-out comment that the Supreme Court was a constitutional sibling of Parliament, Prime Minister Narendra Modi chose to make some adversarial remarks. “Five-star activists”—wounding words these are, coming from a prime minister, and they are frightening too if interpreted as a war cry against social activism. These aren’t per se words that bind down activism, but they evoke disturbing premonitions. Already the conference was mired in controversy: Justices Kurian Joseph and Vikramjit Sen had protested the scheduling of the event on Good Friday and the CJI had justified his decision.

Modi had two targets: Teesta Setalvad, who has taken up the cause of victims of the 2002 anti-Muslim riots in Gujarat; and Priya Pillai, a Greenpeace activist whose freedom to dissent and to travel was valiantly restored by the Delhi High Court. Some lawyers are thinking of filing a contempt of court petition: Modi’s remark about “the issue of bail of (sic) five-star activists” is particularly unfortunate as it refers to a particular case pending before court. But it will be equally unfortunate if the judges find cause for contempt of court. More likely, they will dismiss any contempt petition on this.

The point is not what the Supreme Court will do, but rather what a prime minister should or should not say. While entitled to speak to the nation, no prime minister or legislator should comment on something that is subjudice as it may jeopardise the justice process. Remember, the government is the biggest litigant. And now it has begun to claim the power to appoint justices, a power that is contested before court. Prime ministers and legislators enjoy freedom of speech, but they should refrain from asserting as a social fact something which is in the realm of conjecture. Are all social activists ‘five-star’ activists or ‘five-star’ advocates? If some indeed are, the State should make this public. Leaked documents and intelligence reports won’t do. In any such disclosure, the onus is on the State to reveal clearly the hidden connections of such activists.

The social activists I have met in more than 30 years of teaching, research and activist lawyering are in no sense ‘five-star activists’. Rather, they are fighters for just and lost causes. Appearing as petitioner—I recently stopped doing this owing to inclement health—I’ve never seen a ‘five-star activist’. One may have honest differences with some social activists, but one should not question their bonafides.

The Supreme Court (and the high courts) have decisionally frowned on ‘five-star’ activism that converts public interest litigation into private or political litigation; they have asked for names of members of a group supposedly acting in public interest, severely disciplined lawyers and social action groups for abuse or misuse of the judicial process; and dismissed many a petition for want of prima facie case. Moreover, since the 1980s, jurists have openly dissented on the constitutional vires of social-action litigation (as I prefer to call pils). Justice E.S. Venkataramiah expressed the same anxiety early enough that the prime minister now expresses when he said judicially, as well as judiciously, that when the executive fails to act according to law, people will go to Parliament, and when that fails, to the courts, but what will they do if the courts were to fail them too? CJI Dattu is, however, entirely right to suggest that the Supreme Court has means of self-correction and it will continue to innovate these.

Prime ministers and Parliaments have taken every public occasion to remind learned justices to stay within the law, and justices, like elected representatives, take an oath to uphold the “constitution as by law established”. What the political class means is the Constitution as established by laws made by them. The justices, on the other hand, mean by law the Constitution which they interpret; they justify it by saying that the Constitution is a higher law which all should follow—including those who make the law and amend the Constitution.

The conflict between the Supreme Executive and the Supreme Judiciary is not new; both seek to co-govern the nation. And it is not peculiar to India; rather it is now the condition in which all mature democracies grow, whether in the old or the new British Commonwealth, the European Union  or in the United States of America. What is peculiar to India is the doublespeak: the executive claims respect for the Constitution and the judiciary on the one hand and on the other asserts untrammelled supremacy, especially when it commands a legislative supermajority.

Pandit Jawaharlal Nehru claimed absolute parliamentary sovereignty and the then Supreme Court justices accommodated him, even holding constitutional amendments valid which were later declared unconstitutional. The germ of doubt was planted in 1967, when Justice M. Hidayatullah wondered aloud in the Sajjan Singh case whether the Constitution should be the ‘plaything’ of a majority. There was no judicial looking back thereafter: in the Golak Nath case, their lordships said in 1969 that fundamental rights may not be amended; in the Kesavananda Bharathi case, the court held that all amendments to the Constitution should pass the test of keeping to the basic structure and fundamental features of the Constitution. And now the Supreme Court uses this newfound power not just to invalidate amendments but also extend its powers to presidential and executive decisions and acts, subordinate legislation, and generally puts the basic structure doctrine as a means of statutory construction.

The court, through social-action litigation, has worked many a constitutional wonder. It has made many directive principles into fundamental rights (like the Right to Education); it has judicially invented new rights that either our constitution-makers declined (the right to speedy trial, the right to substantive due process) or basic human rights (such as the right to privacy and dignity, shelter, livelihood, environment). The court has enacted laws against sexual harassment at the workplace, Holi hooliganism, ragging and so on, and Parliament has adopted these. It has protected, as best as it can, the right to free speech and expression, as well as the right to debate and dissent. It has also initiated new policies in diverse fields.

Many decisions of courts have simply not been obeyed. The executive delays matters by not filing, despite many reminders, responses to constitutional and judicial concerns. The rights and policy adjudicatory leadership is begrudged by the executive. The executive acts in many ways to curb the independence of the judiciary. Instead of cooperation, there is confrontation. The old view of separation of powers prevails in the face of a different interpretation by the highest court. Judges are held (to use Professor Dworkin’s words) not even as ‘deputy legislators’ or even as ‘deputies to legislators’. Theirs is the task to decide the cases and controversies brought before them by litigants, not to lay down the law or policy. Executive complaints of ‘judicial overreach’ are reaching a new crescendo. Even so, Modi can make a new beginning by giving greater financial autonomy to the courts as the CJI has urged.

Judicial decisions are not flawless, nor is the judiciary a perfect institution. In the company of distinguished jurists, I have been a critic of judicial performance and called for greater judicial democratic accountability. Justices should always be receptive to socially responsible criticism forever crafted by citizens, especially by the media, and law academics and lawyers. I appreciate the prime minister’s call for understanding newly emerging forms of litigation (like cybercrimes); his lament on tribunals that fail to work, though often these remain under-staffed and without minimal facilities; arrears in courts and his call to make legislations ‘future-proof’. These and related concerns are to be taken seriously and in timely fashion.

But it also should be appreciated that the Court has moved us from mere jurisprudence to a new demosprudence, a truly democracy-reinforcing judicial review policy. From the V.R. Krishna Iyer and P.N. Bhagwati era till today, the court has sought cooperation of the executives of states as well as the Union. The progress has been slow; in the single-minded pursuit of the management of political power, the executive has very often postponed the constitutional tryst with destiny of the worst-off Indian citizens. It is good for the nation that there are justices who know how to nudge an indifferent executive.

(Upendra Baxi is Emeritus Professor of Law, University of Warwick.)