The judiciary is not an op-ed page contributor or a JNU post-graduate in post-colonial studies. Last heard, the job of judges is to deliver verdicts in specific court cases and to pass orders. The practice of making commentaries to nudge parties into action or to discourage them from taking unlawful action is a supplement rather than the main task at hand. But twice over the last week, the Supreme Court of India, in its wisdom, seemed to have made opinionated commentary the judiciary’s main USP.
On July 4, Justices B Sudershan Reddy and Surinder Singh Nijjar sat over Writ Petition (Civil) No(s). 176 of 2009 — Ram Jethmalani and Others versus Union of India and Others — that dealt with the UPA government’s construed lack of action in dealing with the scourge of black money. The order led to the apex court appointing a Special Investigation Team (SIT) which would probe into money being hoarded in foreign banks. The investigation into the “affairs” of alleged money launderer Hasan Ali Khan and his associate Kashinath Tapuria was brought up for special mention.
The setting up of a judiciary-led SIT, parallel to the executive and the legislative wings of the State, in itself is controversial and has more than a whiff of overreach. But what is quite shocking is the way by which the honourable judges came to the conclusion that the judiciary needs to step in martial law-style to fix a problem that the ‘civilian’ agencies were not, according to the court, conducting “with the degree of seriousness that is warranted”.
After starting with a reference to the Watergate scandal, Justices Reddy and Nijjar proclaimed in the third sentence of the order:
“Price based notions of value and values, as propounded by some extreme neo-liberal doctrines, implies that the values that ought to be promoted, in societies, are the ones for which people are willing to pay a price for. Values, and social actions, for which an effective demand is not expressed in the market, are neglected, even if lip service is paid to their essentiality.”
Then again further down:
“Increasingly, on account of ‘greed is good’ culture that has been promoted by neo-liberal ideologues, many countries face the situation where the model of capitalism that the State is compelled to institute, and the markets it spawns, is predatory in nature.”
I could have sworn I was reading not a Supreme Court order but a rather badly written editorial in the People’s Democracy.
A day later, on July 5, the same two judges passed another order that declared the Salwa Judum groups in Chhattisgarh to be illegal. The issue of arming locals to fend for themselves against Maoists has been controversial. In Writ Petition (Civil) No(s). 250 of 2007 — Nandini Sundar and Others versus State of Chhattisgarh — Justices Reddy and Nijjar ordered the state of Chhattisgarh to desist from using ‘Special Police Officers’ (read: villagers with rifles) against Maoist activities and to take measures to prevent the operation of any such anti-Maoist group.
But again, the argument presented by the Supreme Court has left me wondering whether Justice Arundhati Roy was also a member of the bench.
After quoting from Joseph Conrad’s Heart of Darkness — ironically the line, “The horror! The horror!” is spoken in the novella by a deranged ivory trader who positions himself as a demigod among native Africans — the judges return to their favourite theme:
“The culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general, and Chhattisgarh in particular.”
I don’t mean to lecture, but surely a thesis on the ‘horrors’ of neo-liberalism hasn’t become the brief of the Indian judiciary? What we end up knowing all too well — apart from the court’s orders themselves — is the ideology of the judges.
The last place where one can afford to have ideology injected into the system is the judiciary. Imagine a verdict being given in a property dispute where the judge states his antipathy towards private wealth and the need for collectivism. And it’s not about which ideology a judge is seen to harbour. It would be as shocking to find judges reel on about the terrible vices of a command economy as about neo-liberalism. It’s about the fact that a judge could be perceived as basing his judgment on some ideology, any ideology.
And how far is judicial overreach from the judiciary playing to the gallery? One man’s pressure groups/activists are another man’s villagers with pitchforks/lynch mobs. Politicians and the media feed on ideological divides that they convert to votes, TRPs, circulation figures and SMS polls. But for the judiciary to lean on anything but the law is asking for a perilous situation where right or wrong is replaced by good or bad.
Which could also explain why courts are rushing in where the judiciary should fear to tread. Or to rephrase Kurtz’s old line: The horror! The horror of subjective judgement!