It appears to me that the phenomenon of judicial activism can bring about different reactions depending on what sort of critic you are. Arun has brought to our attention the article in Indian express written by Pratab Bhanu Mehta today. In his article, Mehta makes two assumptions, which may be flawed, if we look at it from a different perspective. One is that it is the High Courts which are generally crossing the lakshman-rekha of judiciary-executive divide, and the Supreme Court always glosses over this. The second is what he calls as the jurisprudence of exasperation, citing Justice Markandeya Katju’s observation of hanging a few corrupt people from the lamp post, as the latest example. Courts are doing things because they can, not because they are right, legal or just, he put it succinctly.
Only the other day, writer-activist, Arundhati Roy spoke at the People’s convention on judicial accountability in New Delhi on March 10, and the substance of her speech was similar to Mehta’s conclusion that judicial activism is not grounded in any sense of right and justice. But the tone and tenor of Roy’s comment – probably because she saw herself as a convicted criminal, having been convicted for contempt of court in 2002 and sentenced for a day’s imprisonment by the Supreme Court for allegedly attributing motives to the Bench – ensured that her speech did not get the kind of publicity in the media, which one could normally expect in case of celebrities like her. And Roy’s speech, incidentally, is a pointer to why Mehta’s two major assumptions in his piece, may be flawed.
Arundhati Roy’s response to Mehta’s argument against judicial excesses by the High Courts would be this (as inferred by me) : The judiciary (there can be no distinction between High courts and Supreme court here) is accountable to the rich, and 70 per cent of people are outside its limits, and they are in fact controlled by the Judiciary through various mechanisms, including the Public Interest Litigation. Although she said this while justifying contempt of court, she could as well be indicating that the judiciary was not doing enough, for the 70 per cent, while doing all it can for the remaining.
She was equally critical of the lack of logic, and absence of intellectual integrity in today’s judgments – as Mehta is. But look at the underlying differences in their perceptions.
Justice Katju’s remark is seen as an instance of judicial exasperation by Mehta. But to Roy, (again, it is my interpretation of her speech – these are not her exact words) exasperation would mean that the person giving expression to such exasperation is equally moved by corruption everywhere – including that of judiciary. If a low-level official accused of taking bribes in the fodder scam is to be hanged, it goes without saying that Judges accused of corruption should face similar fate – even though she herself would be against capital punishment in principle.
My point in juxtaposing Mehta and Roy on the question of judicial activism, is not to compare or pass judgment about their individual understanding of the issue, but to bring out the underlying perceptions of a scholar – more concerned about the institutional strength – and an activist seeking to articulate the layman’s discomfort with the perceived biases and prejudices of the judiciary.