The ‘power’ in the hands of India’s judiciary

  • Letters
  • Monday, 29 Mar 2004

India Diary with Coomi Kapoor

A GROUP of retired civil servants recently filed a Public Interest Litigation (PIL) in the Supreme Court of India praying that it take over the administration of the country in view of the all-round failure of the politicians. 

Mercifully, the highest court in the land had had the good sense to say, “Thank you, but no thank you”. 

Otherwise, one shudders to think of the consequences. 

The nascent India, founded on a clear division of powers and functions among the legislature, executive and the judiciary, would have been thrown into turmoil.  

As it is, politicians are already smarting under the feeling that the courts had slowly but steadily usurped their powers and functions of governance by exploiting the popular cynicism against the entire political class. 

Thanks to judicial activism, courts have made it their business to question the executive in matters, which strictly do not fall in their domain. The convenient tool for so doing is the ubiquitous the PIL. 

The PIL might be of recent origin but under its guise the courts have broadened their powers to such an extent that the executive has come to look at the judiciary as an adversary out to cut it to size. 

Of course, it wasn’t like this always. Till the mid-80s, the judiciary very much stayed within its constitutional confines. In fact, critics at the time said that it was too docile, too subservient to the executive and the legislature.  

In the early decades of India, legal pundits argued, courts were keen to allow the administrations of the day time and space to implement the socio-economic agenda.  

But since the mid-80s, which also saw the advent of weak and ineffective administrations at the central and in state level, judicial activism as a tool to address all manner of grievances of the people had gained ground.  

Broadening its political and legal ambit, the courts had now taken to addressing such questions as the height of a hydro power dam, the relative merits of various automobile fuels, the consumption and exhaust norms for passenger cars, the height of outdoor billboards in metropolitan towns, the validity or otherwise of tuition fees in professional colleges, the removal of shanty towns from public land in urban areas, etc.  

In other words, there is not a field where one cannot approach the courts for seeking to restrain, direct or influence the executive. Indeed, the apex court granted its stamp of approval, quite gratuitously, to the Hindutva, the political philosophy dear to the ruling Bharatiya Janata Party.  

Addressing peoples’ grievances against an overbearing and non-performing executive might not be such a bad idea, after all but there are instances galore where the courts have misused PILs to provide relief to law-breakers.  

One of the commonest methods is the use of the judiciary to prevent the demolition of wholly unauthorised structures. The national capital is dotted with buildings where their owners had arbitrarily changed the land use from residential to commercial and built far in excess of the permissible limit, thanks to the propensity of the courts to grant stay to builders against demolition by the civic authorities.  

Often the courts have turned a mere postcard addressed to a senior judge into a PIL.  

A few years ago, senior journalist Kuldip Nayar dropped a postcard to the then Supreme Court judge Kuldip Singh complaining about the proposed move to build a five-star hotel in what was originally supposed to be a green belt.  

In the open court, Justice Singh read out the postcard and without giving the civic authorities a chance to plead their case stayed the construction of the five-star hotel and other facilities in the area. It took prolonged litigation for the stay to be lifted. 

Admittedly, a conscientious judiciary keeping watch on the doings on a wayward executive and legislature wouldn’t be such a bad idea, but only if honourable judges were to inspire complete confidence.  

They do not.  

There are numerous cases of judicial misdemeanour.  

Recently, a court in Ahemdabad issued warrants against the Chief Justice of India and the President of India on a fictitious plea filed by an investigative journalist to expose corruption in judiciary.  

The apex court suspended the erring Ahemdabad magistrate, but even before the ink could dry in that case another court in Rajasthan issued warrants against a high constitutional functionary on an equally fictitious plea.  

Instead of cracking the whip against the black sheep in the judiciary, senior judges have often gone out of their way to condone the egregious behaviour of their colleagues.  

Recently a number of judges of the Karnataka High Court were involved in a sex scandal. When the media exposed them for cavorting half naked in a guesthouse in an inebriated state with women of dubious reputation, their lordships were so angry at their exposure that they slapped contempt of court cases against a huge number of publications in Karnataka.  

In another case, a judge of the Rajasthan High Court was obliged to resign following reports that he was involved in a scandalous trade-off with a woman client who was promised a favourable decision should she extend sexual favours to his lordship.  

The judiciary is not infallible, because not all judges behave correctly and incorruptibly. One remedy lies in amending the courts’ power of contempt.  

The legislature is supreme in the constitutional scheme of things, as such it has been argued that truth ought to be a made a valid defence in all matters of contempt of court.  

As the contempt law stands today, one can be punished for stating the truth against a judge. Powers of contempt of court have been misused to brush the judiciary’s misdeeds under the carpet.  

The overriding powers of the judiciary in appointments of judges to the Supreme Court and various High Courts have also rendered the executive ineffective in curbing judicial excesses.  

Till a few years ago, the executive had the upper hand in judicial appointments but due to the questionable appointments made by a former Law Minister in the 80s, the Supreme Court re-interpreted the relevant constitutional provision to make itself supreme in appointment and transfer of senior judges, a power which has made it extend its locus standi to all facets of governance.  

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