ASHOKA'S column is looking a trifle shaky as two of the three pillars of parliamentary democracy—judiciary and legislature—are virtually on the warpath. "Judicial activism has gone too far," fulminate members of the national legislature. The most recent example, according to them, of judges acting like a "super government or a super parliament" was when a judge of the Allahabad High Court issued summons to the Prime Minister to appear before it on a petition challenging his appointment. The Supreme Court has since stayed any petition challenging the Prime Minister's appointment on the ground that he is not a member of Parliament but the issue has divided the judiciary and the legislature nonetheless.
The judiciary's defence: it is the only institution still capable of arresting the decline in public life; but the legislature contends that the country is heading towards a 'judo-cracy'—a situation in which judges are taking on the role of arbiters in every dispute from the environment to communalism. "Judicial over activism!" thunder Rajya Sabha members. A process—the high watermark of which was perhaps the unprecedented judgement of former chief justice M.N. Venkatachaliah when he sentenced former Uttar Pradesh chief minister Kalyan Singh to jail for a day—that has united political parties in indignation.
Yet, there are those voices of restraint in the judiciary itself. Says a former Supreme Court judge, requesting anonymity: "If the Allahabad High Court's direction was based only on the ground that the Prime Minister is not a member of Parliament, then the court has not done its homework. There have been any number of judgements in the past on similar petitions and even in recent weeks there were judgements in Karnataka and Calcutta where courts dismissed petitions questioning the position of the present Prime Minister on the same grounds. The judgements were obviously published in newspapers around the country and the Allahabad High Court should have known about them. What can the court do if the Prime Minister refuses to appear before it? This is not a criminal case where a non-bailable warrant can be issued to produce him in court."
Concedes Justice Y.V. Chandrachud: "The judiciary should watch its steps before it embarks upon enquiries into matters that do not fall in the area of the judiciary." Justice P.B. Sawant, former Supreme Court judge and Press Council chairman, feels judges should not make sweeping statements. "It is erroneous to think of the judiciary in a new incarnation. The judiciary is performing its constitutional role. It is undeniable that politicians today, by and large, belong to a class that they should not, but the judiciary's role is to enforce the mandate of the law. To ensure that from the patwari to the president, nobody is above the law." Sawant claims that the aborted move to impeach Supreme Court judge Ramaswami was a turning point in the relationship between the judiciary and the legislature: "When the ruling party abstained from voting, this was an example of the degeneration of public life."
What is at the root of the conflict? Perhaps there is an increasing class difference between rulers and their advisers, a clash of civilisations between the learned practitioners of law and the rough-and-ready campaigners for the ballot. The well-educated, often well born guardians of legal propriety are bound to look with scorn on the extra-constitutional methods of those who ride into Parliament from the maelstrom of 'real India'. "When the government is weak, it is not carrying out its constitutional obligations," says Justice C.S. Dharma-dhikari, former judge of Bombay High Court. "Then the common man has no other forum but the judiciary. We cannot have judicial impotency as well."
But are the judges trying to play god by seeking to solve disputes that simply cannot be resolved through legislation? "There are limits to what the law can do," says a Supreme Court lawyer. "The Ram Janmabhoomi issue, for example, is not one that can be sorted out by legal action and it was quite correct that the Supreme Court returned the reference made to it by the Narasimha Rao government."
Democratic constitutions lay down that judges must be law-givers and not law-makers, the latter being the preserve of the people or their deputies in the House. After all, the court can't afford to become hostage to every 'frivolous and vexatious' petition about political leaders. But what happens when the deputies fail to live up to required standards? An 'activist' judiciary steps in. "The elected representatives," says constitutional lawyer Nani A. Palkhivala, "have totally failed the country, and the judiciary is acting with a greater sense of responsibility and integrity than the legislature."
Indeed, by vowing to enforce the rule of law on whomsoever the individual concerned may be, the judges have overturned the privileges of power. Says senior advocate Soli J. Sorabjee: "The court is no respecter of persons. It does not know who is Narasimha Rao or who is L.K. Advani. The judiciary is doing what it should have done years back. It has never existed for the protection of highly-placed personalities. It is the duty of the judiciary to tell the government to do its duties. However, all this talk of 'third force' and 'activism' is media sensationalism."
But is the judiciary not overreaching itself, deciding on the length of service of IAS offi-cers, clearing the Delhi Ridge of encroachments, even pronouncing on the secular nature of election speeches? A recent column by a former member of Parliament even laid the blame for the demolition of the Babri Masjid on unnecessary judicial meddling.
"Whoever says this should be sent to a lunatic asylum," retorts Supreme Court senior advocate and former law minister Shanti Bhushan. "Whose duty is it to protect the fundamental rights of the people? Ninety per cent of politicians are corrupt, 75 per cent of the bureaucracy is corrupt, and 95 per cent of the police are corrupt;the judiciary is the only institution that can still safeguard fundamental rights. Are politicians to be allowed to indulge in corruption, to loot the treasury, to use votes to have a luxurious lifestyle? If the judiciary does not act, India will become a banana republic. Of course, there are instances of corruption in the judiciary also, but this nexus between corrupt politicians, criminals and police must be broken. Must the life of the common man be at the mercy of mafias?" Bhushan asks.
But do judges have a moral right to sit on judgement on politicians? Should judges such as Justice S.K. Dhingra (who took on erstwhile minister Kalpnath Rai) or Chief Metropolitan Magistrate Prem Kumar use the court as a forum for rhetoric against elected leaders of the people? "The courts must be circumspect," says Justice E.S. Venkataramiah. "Every organ of democracy has its independence and this must be recognised. Just as the Constitution bars discussion on the conduct of judges by legislative bodies, the judges are also barred from questioning proceedings of legislative bodies. "
Senior advocate P.P. Rao says it is not the duty of the courts to issue statements about politicians. "The court is there to consider the facts. But there is no doubt that there has been a decline in public affairs, especially among politicians and ministers. In earlier times we did not hear of so many scams and scandals against ministers as we do now. The nexus between police, politicians and criminals is widespread." However, Rao says the judiciary cannot fill any vacuum created by the decline of the legislature or the executive. The courts can review the actions of both, but its primary role is in dispensing justice, not in governing the country.
So, perhaps, the notion of an 'activist' judiciary is misplaced. With the legislature in disarray and the executive sunk in apathy, what appears to be activism on the part of the judiciary may only be an indication of relative dynamism. Thus, to give the court's actions an inappropriate label is to do them a disservice. After all, as Aristotle said, better the rule of law—for all its lacunae—than the rule of a corrupt coterie.
