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Order of the day

The biggest fallacy in the debate over judicial activism is that it has become an excuse for knee-jerk and ill-informed neta-bashing, writes Barkha Dutt.

india Updated: Dec 14, 2007 22:26 IST

It took less than two days for India’s judges to abandon sulky reticence for the outspoken and self-righteous hectoring that we are all used to, and often grateful for.

Ironically, this time, the Supreme Court’s renewed school-prefect ire was directed at privately-run nursery schools — the area identified by another bench of the same court as an example of the judiciary not minding its own business. But there was something comfortingly familiar about the court’s lofty indignation at why school admissions should be trapped in a vortex of influence and money. While permitting primary schools to interview parents, the court wondered whether the motive in making parents “run around like beggars” was a perverted way of measuring the worth of kids by social status and forcing their families to pay bribes dressed up as donations.

It’s the kind of worthy observation that makes middle-class India love the men (and women) in black. It’s also exactly the sort of sanctimonious grandstanding that makes the political class (and more than a few lawyers) cringe. When Justices Katju and Mathur warned their colleagues to “not cross their limits” in the name of activism and to not take over roles that clearly belonged to the executive and the legislature, many saw it as overdue self-censure.

But the paralysis that followed the controversial order — judges virtually refusing to accept public interest litigations and forcing the Chief Justice to step in — is a measure of how much India has changed. Quite simply, the justices may have got textbook law bang on, but seem to have entirely missed, or misread, the public mood.

A decade ago, in the age when governments had god-like power and politicians could hide beyond an opaque wall of influence, judges could have been expected to confine themselves to merely interpreting the law. But today’s India is no longer driven by the mai-baap dependence on the mighty MLA or MP. Economic reforms, by definition, have meant less government, not more, and have bestowed India with an entrepreneurial, can-do spirit. Indians, who could earlier only express their disapproval through the vote (or through ponderous letters to the editor) are more argumentative and assertive than ever before. The explosion of the electronic media has unveiled a parallel platform for dissent. And the Right to Information Act has ended the era in which a sarkari file would be treated as a classified State secret. In this India, neatly defined compartments — that push people behind boundary lines and expect them to stay there — just can’t work.

Those who are impatient with an activist judiciary have caricatured it as the first refuge of the lazy liberal. And, admittedly, there has been an aggressive infiltration by the PIL-happy NGO army into the once robust world of high-minded law. Often, these petitions are absurd. Moreover, in a country where there is a backlog of 40,000 cases in the Supreme Court alone (and another 25 million in the lower courts) they are also a waste of valuable time and money. So, for the Punjab and Haryana High Courts to get involved in the internal workings of whether a golf club should create a driver’s post for a gardener is indisputably ludicrous.

But there are also several legitimate and perfectly grave issues that the country takes to its courts. Murderous Blueline buses, illegal constructions, the state of our hospitals, the collapse of our cities — these may have once belonged firmly in the domain of the legislature. But what happens when public opinion collides with political consensus? Delhi, for example would have continued to remain smoggy and grey had the courts not forced buses to switch to CNG. Or when enlightened intervention is needed and absent from political debate — think back to the sexual harassment guidelines created entirely by the Supreme Court’s intervention?

And what if parliamentary unanimity does not seem genuinely representative to voters who continue to violently disagree over government policy? Take the recent dispute over quotas in higher education being increased by 27 per cent. Politicians have argued that there can be no better example of judicial excess. But no matter which side of the quota divide you are on, does a policy that came into being because one minister (Arjun Singh) decided to force his party’s hand, and then embarrassed everyone else into agreeing, not deserve to be questioned?

The biggest fallacy in the debate over judicial activism is that it has become an excuse for knee-jerk and ill-informed neta-bashing. The political establishment argues that to encourage middle-class support for judicial activism is to endorse an unhealthy contempt for the political process.

On the contrary, it is the new belief that there are institutions that make intervention and change possible that has made an otherwise cynical people much more involved with politics than before. We feel that we are stakeholders in the system because we no longer feel like mute spectators.

Yes, possibly, some judges now deliver verdicts with one eye on the public mood. But if you examine recent orders that may have possibly been delivered from the womb of high-decibel campaigns, which one of them seems problematic or erroneous? And if a few judges momentarily feel flattered by the approval of the liberal intelligentsia, is that really such a blot on the process of justice?

There are many other things that need to change within the judiciary to keep it as safe as our social conscience. The most problematic controversy that tails our courts is their propensity to protect themselves from public scrutiny. The archaic and self-serving laws on contempt; the cosy club called the National Judicial Council that only permits judges to examine their own; the exemption of a retired Chief Justice from any interrogation; the allegations of corruption that are never allowed to be openly reported — these are the real blots on the judiciary’s canvas. And this is where the Supreme Court’s self-censure is really needed.

Justice Katju’s order may have been interesting and even much-needed fodder for debate at a legal seminar. But by choosing the Supreme Court as his platform, he has confused both his fellow judges and our expectations of them.

Worse still, if the Supreme Court does not set a new framework soon for how activism can cohabit with the constitutional process, our new-found confidence as an open society could take a serious hit.

Surely then, it’s the law that will be “a ass”.

Barkha Dutt is Managing Editor, NDTV 24X7