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Surely, Mr Jaitley

Judges can, and have, crossed the line for a good cause.

Written by Fali S. Nariman |
May 19, 2016 1:13:41 am
jaitley, arun jaitley, jaitely judiciary, arun jaitley, arun jaitley judiciary, finance minister, india news Arun Jaitley strongly condemns PTI Photo

The May 17 issue of The Indian Express has reported the finance minister’s views expressed in a meeting of the Indian Women’s Press Corps. He had said that “a line needs to be drawn” to enable executive decisions to be taken only by the executive, and not by the judiciary: He has called this (as have so many others) the lakshmana rekha. But open any newspaper on any day and you will find in various parts of the country, and in an alarmingly disparate variety of situations, “non-functioning” or “dysfunctional” governments and/ or governmental agencies, whether at the Centre or in the states. They need course-correction.

It was exactly 30 years ago that a promising young lawyer, Arun Jaitley — appearing with a team of lawyers — succeeded in convincing a bench of three judges of the Supreme Court for one such course-correction: The purely executive decision of Delhi’s Lt Governor to terminate the contractual lease of the Indian Express Building, from where its paper was being printed and distributed, was declared unconstitutional and void. Ever since, lawyers like him (though not all as resourceful nor as brilliant!) have succeeded in convincing a succession of judges in the Supreme Court that it is permissible and proper to reach out and remedy individual injustices committed, intentionally or otherwise, on India’s citizenry, by one or other official in government or in a governmental agency.

What is (fashionably) derided as “judicial overreach” has been recently described by Upendra Baxi (mentor of Jaitley and tutor to generations of judges and lawyers) as the “daring adjudicatory leadership of the Supreme Court in the past 25-30 years”. In an essay just published in the Oxford Handbook of the Indian Constitution (2016), he says the highest court has “mutated the discourse of judicially unenforceable directive principles (as originally enacted) by incorporating them into Article 21 (as now interpreted)”, and so converted human needs into human rights. It is therefore erroneous to speak of “judicial overreach” in the present-day Indian context when under our Constitution, enforcement of Fundamental Rights, including the right guaranteed under Article 21 (now expanded into infinitely diverse areas only remotely connected to “life” and “living”) has become a constitutional duty, performed on an almost daily basis by judges in the Supreme Court (under Articles 32 and 136) and by judges of high courts (under Article 226). It is just too late now for anyone — even a worthy cabinet minister — to cry halt to what Professor Baxi has so eloquently described as the ongoing judicial discourse about “converting human needs into human rights”.

As for not crossing the lakshmana rekha (a line actual or imaginary, the crossing of which may entail serious consequences), it has become a figure of speech derived from one among many versions of the Ramayana. Sita asks Rama to fetch a magical golden deer for her; Rama goes in search of it asking Lakshmana to stand guard around Sita’s dwelling house — at Panchavati (near present day Nashik in Maharashtra); the golden deer is in fact the demon Maricha who distracts Rama, and when Rama kills Maricha, the latter cries out for help but in Rama’s voice. Sita panics, and promptly orders Lakshmana to go to Rama’s aid. Unable to disobey Sita, Lakshmana draws a perimeter-line which Sita must not cross, and then goes in search of Rama. Whilst Lakshmana is away in search of Rama, Sita, out of compulsion of performing a religious duty for a guest (Ravana disguised as a poor Brahmin) crosses the line to give him food, following which she is abducted.

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Constitutionalists apply the metaphor to courts who are forbidden by Article 37 of the Constitution to enforce by writs or orders the catena of Directive Principles of State Policy set forth in Part IV of the Constitution. But the same article also mandates and makes it a duty of “the State” (the legislatures and the executive) to enforce and implement for the good of India’s citizens all the dos and don’ts set out in Part IV of the Constitution. For the constitutionalists, the principles of state policy (which cannot, and therefore must not, be enforced by courts of law) is the lakshmana rekha. But ever since 1986 (the Indian Express Building case), judges have frequently crossed the lakshmana rekha of Article 37 — simply because “the State” (the legislatures and/ or the executive) have failed to implement the Directive Principles of State Policy. In so doing, as Baxi says, they have converted primary human needs (not attended to by those whose duty it was to attend to them) into human rights, thus making them enforceable by courts under Article 21 of the Constitution.

And so as the Ramayana itself so eloquently depicts, the boundary line can be crossed and is crossed — but only, and always, for a good cause.

The writer is an eminent jurist and senior advocate to the Supreme Court

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First published on: 19-05-2016 at 01:13:41 am
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