Clarifying lines

Delivering the M.C Setalvad lecture organised by the Bar Association of India,Chief Justice S.H. Kapadia urged circumspection and restraint on the judiciary,especially on matters of policy and governance. He spoke of judicial activism,which,even if it comes from a good place and is intended as a check on the arbitrariness of the executive,can shade into a dangerous overreach. He cautioned that judicial activism that runs free of Constitution and statute raises questions about the accountability of individuals who are after all,not chosen by democratic process,and are not answerable to the legislature or executive. He asked the judiciary to ponder whether the question presented to them had a legal or a political content,reminding them that the courts true role is to review the acts of the legislature and not to substitute its own policies or values.

That is fitting advice,in this atmosphere of extreme hostility to the processes of parliamentary democracy. However,it must also be pointed out that in the Indian experience,far from circumventing the electoral process or thwarting the peoples will,our courts have,in many,many cases,protected their interests and expanded their rights. The higher judiciary has tried to act as bulwark against corruption by strengthening investigative agencies,wrested greater openness from the government,filled the gaps where state agencies have failed and acted boldly on welfare issues,environmental protection,sexual freedom,etc. Recent examples are the way Supreme Court systematically sifted through the facts on the 2G spectrum scandal,or the way it held the government to account on the sloppy appointment process for the chief vigilance commissioners office.

So in turn,we need to be careful of any action that inadvertently messes with the independence of the judiciary. Even the civil society members of the Lokpal Bill drafting committee have piped down somewhat,accepting that the higher judiciary could be kept out of the bills ambit. The rationale for keeping them out is not to shield wrongdoing,but because it might encroach on their free functioning,which must be carried out without fear for penalties or hope for reward. The separation of powers is hardwired into our constitution,the principle that no one branch of the state will be able to subordinate the other and all sides need to underscore their commitment to that bedrock principle.