Courting a question

As an ex-CJI argues, what if some judicial orders provoke executive non-compliance?

High judiciary in India is akin in a way to the British monarch. An operating principle of the latter, in the absence of a written constitution, is to avoid a course of action that invites rebuff from parliament or from her prime minister. The courts in India 8212; given the latitude they have acquired for judicial intervention, review and activism 8212; too have by and large striven to ward off the possibility of rebuff. As J.S. Verma, former chief justice of India, noted in a recent lecture, the second and concluding part of which is printed on our op-ed page today, 8220;Judiciary having no machinery for implementation of the orders, what

happens in the event of refusal or failure of the executive to co-operate?8221; That is a dire and extreme scenario, which is nowhere near materialising at the present moment, but it does provide a context to frame worry at the kind of judgment delivered by a single judge of the Allahabad High Court on Thursday.

Justice S.N. Srivastava held on Thursday that Muslims could no longer be treated as a religious minority in Uttar Pradesh, and ordered the state government to treat applications for grants by Muslim institutions on par with non-minority institutions. A day later, a division bench of the same high court stayed the order, and this should hopefully limit the political fallout in the course of a long and charged assembly election. Quantification of a 8220;minority8221; is, as experience suggests, not a matter of simple arithmetic alone. That aside, this latest judicial episode is likely to amplify

recent murmurs about judicial over-reach.

Justice Verma8217;s warning to the judiciary to stay well clear of judicial ad hocism or judicial tyranny is unexceptionable. However, another point too must be restated. The case for judicial intervention in many instances is made on the grounds that other branches of government could be failing in meeting their constitutional duties. How far can this point be stretched? Says Justice Verma: 8220;Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose.8221; Put another way, healthy respect for each other8217;s turf could empower all branches of government.