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Journalism of Courage
Our present constitutional condition evokes two contrasting images. On the one hand, recent actions of the judiciary seem to strike a worthy blow on behalf of the core value of constitutionalism: producing accountable government. On the other, there is the unseemly spectre of government becoming a continual scuffle between the judiciary and other branches of government, in which sometimes one and sometimes the other prevails.
While formally both sides will call upon each other to be partners in promoting constitutional values, the political die has been cast. The Supreme Court tries to clean up violence-ridden student elections. Politicians respond by condoning the distribution of arms to students in Lucknow. Although peace has finally prevailed in Delhi, the sealing drive carried the potential for violence. It will be too premature to conclude that the Court can continue to do for city governance what it managed to half do on one occasion. The Supreme Court, in the name of constitutional integrity, is passing order after order on the contours of reservation policy, but all the signs are that these will have little effect. MPs have already indicated that there should be a discussion on the courts usurping legislative prerogatives.
Take a controversial example: the recent case of the Court ordering the CBI to proceed with Mayawati8217;s prosecution. The disquieting aspect of this order was that, in an instant, it diminished the office of the attorney general. The Court8217;s order amounts to basically saying that the opinion of the senior-most constitutional law officer in a government is irrelevant in deciding whether the government should proceed with a prosecution or not. Speaker Somnath Chatterjee has a point when he sees an analogous diminishment of other legislative offices as a distinct possibility. At the same time, the judiciary8217;s own dogged immunity from scrutiny, accountability and public reason in its mode of appointments, suggests that it too hides too much behind its formal powers.
The third sense in which courts can overstep is in policy matters. There is little doubt that the judiciary has often grossly overstepped its bounds. As Justice Srikrishna, in a recent and thoughtful survey of judicial activism, wrote: 8220;Judges now want to seem to engage themselves with boundless enthusiasm in complex socio-economic issues raising myriads of facts and ideological issues that cannot be adjudicated by judicially manageable standards.8221; Politicians did not care much when the object of judicial activism was policy matters. It is only when the target of so-called judicial activism changed from policy to promoting accountability that politicians started getting riled. This suggests that their call for debating the judiciary8217;s role is an exercise in deep bad faith. It is only when the powers of their office and their immunities were challenged by the Court that politicians started getting agitated. It would have been wonderful if the supposed grand tussle between different branches of government was inspired by serious principles. It would be ennobling if this were a struggle undertaken in the name of an enduring and irresolvable tension between constitutionalism and democracy. Instead, it often seems nothing but an attempt to protect the most indefensible immunities the political class has enjoyed against accountability.
Finally, the legislature and judiciary can come into conflict when there are grey areas over what actually the Constitution permits. Judicial interpretations and the weakening of the 73rd Amendment are an example. Arguably, reservations are another tricky area in this respect. There is no simple metric to resolve this inner conflict of constitutionalism, though one has to admit, that it would be foolish to take presumptive authority in this matter away from Parliament. As much as one should disdain the populism of the legislature, vesting presumptive power in judges on legislative matters can also hardly be called synonymous with democracy. It is one thing for judges to carry the public with them when the target is veniality of politicians; it will be quite another for judges to stand against the public. The judiciary will have to choose its battles carefully.
But the judiciary8217;s calling into account of politicians represents, not so much a triumph of constitutionalism, but an acknowledgment of its breakdown. Indeed, nuanced argument about the formal distribution of powers, about the delicate balances inherent in our constitutional scheme, and about principles have become almost irrelevant. The judiciary wants to be result-oriented, and the public mood is receptive to the judiciary. But we have now put ourselves in a position where we want to say that no branch of government, other than the judiciary, can be trusted to discharge their constitutional functions. This also has the corollary that authority, rather than being distributed through the system, will now overwhelmingly be concentrated in one branch of government. This may be fine for now, but then constitutions are not made for an ephemeral present. The real test of the judiciary8217;s success will not be whether it can give a few whip lashes, but whether it can help us to move to a position where all branches of government can once again become trustees of the people.
The writer is president, Centre for Policy Research
