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 urged 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.
(Ramesh Thakur is Distinguished Fellow at the Centre for International Governance Innovation and Professor of Political Science at the University of Waterloo.)