Monday, March 12, 2007

Mehta and Arundhati Roy: Two different responses to Judicial Activism

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.

1 comment:

johny said...

Honorable Mr Venkatesan,

I like your blog. There can be no better use of the ‘new media’ platform, than encouraging intellectual discourse on legal issues, in a pure democratic manner. It fills my heart with immense pleasure that any topic that is being posted on this blog gets readers feedback and allows the writer or any stakeholder to submit a rejoinder, which also gets uploaded on the blog. This is a magnificent trend unlike in any other media traditional media platform. I believe it is purely democratic, flexible, and popular among the ever increasing niche audience.

The content on the blog is of great relevance. But, I believe my suggestion to make the presentation more attractive is not unrealistic. Say, for instance, if the data prior to being uploaded is justified, it surely would make reading much more convenient.

I will also like to comment on your post: Mehta and Arundhati Roy: Two different responses to Judicial Activism.

I fully subscribe to your opinion that “the phenomenon of judicial activism can bring about different reactions depending on what sort of critic you are”.

I have read Mr.Pratap Bhanu Mehta’s article in the Indian express and his rejoinder posted on this blog. My due regards to the author but if he intends to derive home the point that “High Courts which are generally crossing the lakshman-rekha of judiciary-executive divide, and the Supreme Court always glosses over this” that too on mere perusal of the instances mentioned in his article.

In such circumstances, Mr. Venkatesan your apprehension about the author’s presumption, I’m afraid, are truly correct. The author needs to be reminded that the landmark judgments delivered by the Apex court in the month of January had invoked such debates on doctrine of separation of powers’. Moreover, the Delhi High Court reference to the levy of congestion charges’ as “consumer (passenger) unfriendly” does not infringe the legitimate rights of the executive and clearly falls within the eminent domain of the courts jurisdiction.

The author’s latter argument concerning the jurisprudence of exasperation is creative but lacks substance. Honorable Justice Katju had just reiterated his observation (corrupt officials may be publicly executed). Ratio decidendi and not obiter dicta forms the operational part of the judgment, thus there was no need for any outcry on the judge’s observation.

I can confidently assert that this remark, by the eminent member of the institution construed as the custodian of the fundamental rights’, was welcomed by the public at large.

I had not heard Ms Arundati Roy and therefore can’t comment on her statement.

With warm regards
Vivek sethi