There is nothing unusual about a prime minister addressing a joint conference of chief justices and chief ministers. There is also nothing unusual about the prime minister hosting a dinner at his residence for visiting judges. There is, however, something amiss about a prime minister telling the judiciary how to do its job or what the judicial process is all about.
Here is what he said: “It is never too difficult to deliver justice within the boundaries of the law and Constitution”. If it were all that easy, we could just as well have computers, into which we feed the law and the Constitution, programmed to come out with justice. Why do we need trained judicial minds? The law evolves and every generation has a right to interpret the Constitution according to contemporary standards and the rising aspirations of the people who are governed by it. That is the role of a constitutional court. To suggest that it is an easy task is to betray ignorance of the democratic as well as the judicial process, where every issue is debated in an open court before a decision can be taken, a decision that advances constitutional values rather than takes the nation backwards into an age in which there was no Constitution, democracy or fundamental rights.
The prime minister laments that there are no inbuilt mechanisms for self-assessment in the judiciary, whereas there are checks on the executive and the legislature. As examples, he offers the right to information, the Election Commission and the soon to be constituted Lokpal. To confuse the judicial function with the executive function and then to make comparisons betrays a fundamental flaw in thought. The decisions of the executive are in the realm of discretion and require no reasons to be stated. In contrast, judgments are rendered in open court and must be supported by reason. And with the exception of Supreme Court judgments, they can be appealed against. The errors of the apex court can also be questioned in review and curative petitions. In contrast, policy decisions of the government cannot be challenged, not even in a court of law, be it the Supreme Court or the high courts, except to the extent that they impact the fundamental rights of citizens — and that too only after the decision is taken and the impact evident. To invest or not to invest in a particular sector, to develop nuclear energy or not to develop nuclear energy are not matters for the courts to decide. Nor can the court sit in judgement over budgetary allocations. Under-budgeting for social justice issues is the easiest way to defeat the rights of the people, something much in evidence now.
And that brings me to his suggestion that “five-star activists” are driving the judiciary. The prime minister does not clarify who is a “five-star activist”. And if there is a star rating for activists, who are the four-star, three-star and zero-star activists? He seems to be targeting his opponents and those who oppose the development policies of the ruling dispensation. The message for the judiciary is: “Don’t mess with me or my development policies”. This is nothing short of interference with the independence of the judiciary. In a speech replete with not-so-veiled references to the various people’s movements taking place across the country on land acquisition, forest rights, mining etc, the prime minister made it clear that he sees “five-star activists” as the biggest threat to the country’s development and progress. The paradigm of economic development peddled by the present government, partly an extension of the policies of former governments, rests on the unbridled plundering of natural resources and their sale to multinational corporations at throwaway prices, doing away with environmental regulation, and grabbing fertile agricultural lands from farmers without consent. Any question, dissent or articulation of an alternative paradigm that is people-centric and sustainable is immediately branded as “anti-development”, obstructing the pursuit of 10 per cent GDP growth, and, quite often, “anti-national”. The prime minister is clearly rattled by the reach of people’s movements even though his party is armed with the entire state machinery to muzzle or suppress criticism — and is actively doing so. The fact that civil society has frequently approached the judiciary to claim relief or get arbitrary executive decisions struck down has not gone down well with him.
Let us also not forget that while a Mumbai court discharged the BJP president in the alleged fake encounter killing of Sohrabuddin Sheikh and the CBI has chosen not to challenge the decision, Sheikh’s family is likely to appeal against it. Apart from personal interest, there is the political interest in the development agenda. This is why he referred to plans for an innocent electricity pole being spiked — we activists are holding up development and the judiciary must not allow us to do this.
And how, may one ask, will the hands of the judiciary be strengthened? By appointing male macho judges — of the executive’s choosing — who will unleash animal spirits on all of us? Or by giving greater contempt of court powers to the judiciary than it already has? We are left to guess what this could mean.
As for the difference between perception and reality, it is true that politics is a game of perception. No one knows this better than the prime minister himself, who uses the perception of “achhe din”, a carefully calibrated ad campaign, to his advantage. However, it seems that the prime minister is unaware of the judicial process, which is based on the application of the law to a given set of facts through an exercise of reasoning in open court.
We need to remind ourselves that there is no effective opposition in Parliament. The real opposition to the policies of the ruling party — for instance, the anti-nuclear campaign and the movement against coal mines being set up in forests — is coming from public-minded individuals, organisations and NGOs. Contrarian views, whether on economic, political or social issues, are the heart and soul of a democracy and have been repeatedly held as such by the courts. One thought that the leader of the world’s “largest” political party would understand its importance but clearly this is not the case. Name-calling is not the solution; nor is intimidating the judiciary. Our judiciary has a tradition of putting prime ministers and chief ministers in their place when the occasion requires and will do so again if need be. It is not an easy judiciary to humiliate or tame.
The judiciary and the executive may well be siblings when it comes to funding and administrative matters. But when it comes to judicial matters, they should stay at arm’s length from one another. If the prime minister had consulted any of the several eminent lawyers in his cabinet, he may have delivered a better speech, keeping within the limits of the separation of powers between the executive and the judiciary.
The writer is former additional solicitor general and senior advocate, Supreme Court.