The golden judicial mean
SEEMA CHISTI IN THE INDIAN EXPRESS
The prime minister’s gentle but firm statement on the Supreme Court’s order regarding foodgrain distribution has been debated politically by several parties. But an aspect of this which has not received much comment is how the tussle between the “law makers” and the law’s interpreters has shaped politics in India — and vice-versa. The Supreme Court’s responses and its “mood” with regard to the legislature and the executive, is something which has been, in over 50 years, a reflection of the politics of the times, and influenced politics in turn.
The courts are, of course, apolitical, and have often surprised the political class with a nuanced response to situations; when tough cookies have been tossed their way, they can hurl them right back, very imaginatively. Consider an episode from not so long ago, one still relevant as the nation waits for the Allahabad high court verdict on the Ayodhya title suits. In 1993, the Narasimha Rao government sent the Supreme Court a presidential reference; and the court sent it right back, in a most sagacious and detailed ruling.
Spool back to the 1950s, when Nehru’s government at the Centre was seized with fire and brimstone over land and related, touchy, matters, such as the abolition of zamindari. The court took a somewhat contrarian stand, one which served as a check on the legislature and the executive. It was a stand not propelled by popular demands, or the mood of the times; it was called “conservative” then, and sometimes even criticised. And just two months after a ruling that stated that the power of Parliament to make laws (in this case, push certain things into a non-judiciable Schedule) was limited by the Fundamental Rights, Chief Justice Subba Rao, who wrote the 6-5 majority judgment resigned — and a quick two months after that stood, as a candidate of the conservative Swatantra Party, for president!
In 1973, when PM Indira Gandhi was power-drunk, the Supreme Court ruled in the famous Kesavanand Bharti case that Parliament had to legislate within the constraints of what they termed the “basic structure” of the Constitution. And again, what the “basic structure” was, was left to the court to decide, making it a factor in how the popular mandate was interpreted and policy formulated by the government of the day.
Just a day after the landmark ruling, the executive superseded three judges and appointed Justice A.N. Ray as chief justice of India. He proved more loyal than the king in the difficult years between 1975 and 1977. And two years after Kesavanand Bharti, the Supreme Court was to contend with the polity’s own basic structure being made to stand on its head: weeks after getting a hostile judgment about her election to Parliament from the Allahabad high court, a shaky Indira Gandhi deemed that a threat to the country and the Emergency was declared. The concept of “a committed judiciary” coined then became synonymous with the pliancy of the courts.
Seething over what politics did to the system of judicial appointments, the judiciary, in an act of over-caution in the 1990s, gave to themselves an unparalleled form of appointment: the “collegium” system. Earlier, it was necessary to consult the CJI; from the 1990s onwards, the collegium became the sole determinant of who got where. This system, even today, is shielded from any attempt at transparency — to protect ourselves from the executive, say judges; overreach, cry the critics. What one can’t deny is how politics impacted the move by judges to shield themselves.
The phase that followed, one which earned accolades for the judiciary, was also a time for great uncertainty in politics. Coalition governments, governments falling before their term was up; and it is at this time that courts stepped in, and judges earned a good deal of applause, with the invention of the “PIL”. Public interest litigations allowed a citizen to become a party, despite not having any formal locus standi. Under Justice Bhagwati and Justice Verma, judicial activism was behind most decisions the court took. Adalats and courts almost tried substituting for the widening gap between the electoral promises and implementation. It was also a time of great ferment, with caste and other issues relating to religious identity and corruption coming up before the courts, but they took on the challenge each time.
Yet it is perhaps a consequence of the “encroachment” which the legislature worried about that another phase of the battle between the courts and Parliament began. Over, for example, the proposed reservation of seats for OBCs in higher educational institutions. The Lok Sabha, having an eminent jurist at the helm at the time, Somnath Chatterjee, pulled no punches and it was a daily battle as the legislature did its best to push back against what they deemed as interference in their matters. A ruling on the state of Jharkhand, directing the Assembly to meet at a certain time in 2006, and rulings on cleaning public conveniences and such like, perhaps acted as a spur.
Otherwise too, the courts had greatly increased their workload and domain. They had amicus curiae, advisory committees, expert committees and even monitoring committees — which were playing the role of the executive as well as the judiciary, drawing much comment, and ire too from certain quarters.
In more recent times, the judges themselves, recognising the political and public mood, have allowed a transparent listing of their wealth and assets. The RTI, going all the way to the Supreme Court, has served a purpose by opening up a debate on even the most revered in the land. But several judges have self-corrected and defended the need to not overreach — and not go into the number of cows on the streets of Delhi, or pollution levels acceptable, or at what time legislatures of states are to meet. To quote the redoubtable Justice J.S. Verma, who almost provided a Goldilocks-ian mean to the extent of judicial activism that’s healthy; “There is a clear distinction between commanding performance by the concerned authority and the judiciary taking over the function itself. The former, not the latter, is legitimate judicial intervention.”