Wednesday, May 02, 2007

Reflecting on Sorabjee's response to the Speaker's public lecture

The previous post focused on Somnath Chatterjee's recent public lecture where he seemed to be providing a theoretical and intellectual framework to the current struggles between the Legislature/Executive and the Judiciary, and also counselled the judiciary on its future course of action.

Predictably, the Speaker's strong message has evoked an equally forceful response. Today's Indian Express carries an op-ed by Soli Sorabjee who has long been a defender of the Judiciary, even while he has occupied the position of a law officer of the government. While reacting specifically to the Speaker's comments, Sorabjee also reiterates positions he has canvassed over a considerable period of time, in academic articles and public lectures. His views in this column consist of a mix of the traditional arguments raised in defence of judicial activism in India, as well as newer points relating to the current context. At the same time, Sorabjee attempts a point-by-point rebutall of the views expressed by the Speaker. While the piece should be read in its entirety, I focus on the following portions:

"Remember that it is thanks to judicial creativity or if you like judicial activism, that certain freedoms like freedom of the press, the right to privacy, the right to travel abroad, the right to education, freedom from cruel and inhuman punishment or degrading treatment have acquired the status of fundamental rights. This is because of Supreme Court decisions that certain unspecified rights are implicit in the express enumerated guarantees in the Constitution and can be deduced therefrom. Would any person, including the speaker, seriously quarrel with this innovative judicial technique, which has enlarged the fundamental rights of our people?

... ... ...

Another assumption in the speaker’s lecture is that courts strike down legislation because of disapproval of legislative policy. Far from it. The Supreme Court did not strike down nationalisation of banks because of its disapproval of the policy of nationalisation. Indeed the court rejected the challenge that the legislation was not in public interest. The Act was struck down because of the omission to provide for compensation under the then existing constitutional provision. The Act was subsequently amended and nationalisation went through. The Supreme Court, in its judgment in the BALCO case, has authoritatively ruled that it is not permissible for courts to strike down a policy decision on the ground that it is unwise or unscientific or uneconomic or illogical or that there could be a better policy decision.

Proper research and statistics would establish that in a vast majority of cases the Supreme Court has upheld socio-economic legislation by invoking the doctrine of presumption of constitutionality of a law and also the unreal presumption that the legislature correctly understands the needs of its people.

... ... ...

Mention of ‘we the people’ in the Preamble and the will of the people in passing a law are certainly relevant considerations but are not decisive in constitutional adjudication of the validity of the law in question. What is controlling is the mandate of the Constitution. Suppose by an overwhelming majority a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination by prohibiting employment of women in any section of the armed forces. Are courts bound to uphold such laws, which violate the fundamental rights of workers and women, on the ground that the will of the people must prevail? Such a stand makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution.

Enumeration of a list of erratic orders passed in PIL makes interesting reading but is not an answer to the legitimate exercise of judicial activism in several other cases. Many over-enthusiastic impermissible judicial orders passed by the high courts have been set aside by the Supreme Court, and exemplary costs have been imposed.

The undeniable fact is that in most cases, it is on account of the lethargy or continued inaction of the executive branch that the court is constrained to direct the executive to implement the laws made by the legislature, particularly when such inaction results in violation of fundamental rights. For example, violation of the rights of children working in hazardous occupations or of the fundamental right to live with dignity of the inmates of asylums and so-called care homes.

... .... ... Let us not forget that thanks to PIL, undertrial prisoners rotting in jails for inordinately long periods, inmates of lunatic asylums and care-homes, children working in hazardous occupations have secured relief. Juristic activism in the arena of environmental and ecological issues has led to accountability in the use of hazardous technology and has yielded salutary results. For example: court’s directions regarding the use of CNG. If this be judicial activism, so be it. The executive may bemoan the court’s directions compelling it to discharge its obligation of law enforcement. The citizens rightly rejoice, because thanks to activist judicial intervention, some semblance of governance and decency in areas affecting their lives has been achieved.

... ....Vigorous exercise of judicial review, in other words judicial activism, largely depends on the prevailing situation in the country, its laws or absence of laws, the level and quality of public administration and the availability of means of redress. It is not static. It cannot be strait-jacketed into a rigid formula. The extent and intensity of judicial review depend on the subject matter of the legislation. In case of socio-economic legislation, judicial activism should be minimal. Where legislation violates fundamental rights of equality, life and liberty, and freedom of expression, judicial activism is not an option but a necessity if the fundamental rights of the indigent and the exploited are to be made living realities.

Alas! We do not live in a perfect world in which there would be no occasion for the judiciary to order the executive to perform its duty of implementing the laws. In this imperfect state of affairs, if the judiciary sometimes exceeds its bounds by passing certain orders, the same should be corrected, but that is no reason for questioning the legitimacy of judicial activism and advocating judicial restraint to the point of judicial abnegation. All said and done judicial review is the heart and soul of our Constitution. "

In making these remarks, Sorabjee appears to be responding not only to the Speaker's lecture, but also to comments made by other politicians in the aftermath of the Thakur order, about the supposed anti-democratic nature of judicial review. Despite his forceful tone, Sorabjee does not, however, endorse judicial activism in general, and concedes that the role of courts in bringing about socio-economic reforms should be limited. But, he points clearly and forthrightly to the 'elephant in the room' that Chatterjee's lecture sought to ignore - that the fundamental problem in Indian governance is not so much that the judiciary is over-enthusiastic, but that the institutions which should be governing are, for a variety of reasons, unable to do so.

In the course of his comments, Sorabjee makes the oft-cited claim that PIL has been a panacea for the Indian populace. This claim in increasingly being contested, as it is becoming evident that many PIL orders have either been ignored or under-implemented. There is also the perception among social activists that the changing nature of PIL (which is increasingly being initiated by the middle class for causes that serve its interests) is causing it to become a tool against the interests of its original constituency: the poor, disempowered and oppressed communities among Indians. Those who disagree with Sorabjee's characterisation of PIL (or would seek to moderate his enthusiastic portrayal of it) would subscribe to the views espoused in this recent editorial in the EPW:

"Of late, the judiciary is giving the impression of stepping in to fill the vacuum by often forcing the executive to take action (against the privileged sons of politicians, as in the Jessica Lal case) or compelling Parliament to enact laws (for example, to curb sexual harassment at workplaces). This has encouraged the Indian urban middle class to repose its faith in the new-found concept of judicial activism, and to wish that the judiciary replaces the corrupt legislature and bureaucracy as the benevolent authority. But there is a catch in this wishful belief. Barring a
few recent cases of judicial intervention, which have had some positive effect on governance, the Indian judiciary on the whole has not displayed any spontaneous will to act on behalf of the common people. The success stories, cited above, were the results of long legal battles by the rich relatives of the victims, or campaigns by social activist groups.

Contrary to the image of a magnanimous judiciary, judicial activism is increasingly sliding into injudicious and irresponsible judgmentsheavily loaded against large sections of the poor and marginalised. To quote a couple of instances, thousands of workers have been uprooted due to court orders to shift polluting industries out of Delhi and slumdwellers are facing removal to far outside the city as a result of a Supreme Court declaration that they have no right to notice before eviction or rehabilitation thereafter. In the short-sighted pursuit of delivering justice to some segments, such judgments are creating new long-term injustices for vaster sections of the population. Further, the breathtaking eagerness with which the judiciary has over the past decade upheld draconian laws like the Terrorism and Disruptive Activities (Prevention) Act (in 1994), the Armed Forces (Special Powers) Act (in 1997) and the Prevention of Terrorism Act (in 2004) portends an ominous future for the democratic rights of Indian citizens."

This debate points to the dire need for comprehensive and meticulous quantitative studies of the actual impact and achievements of the PIL jurisprudence of the Supreme Court. For over three decades now, opponents and defenders of judicial activism have used isolated examples to either attack or glorify the phenomenon. The need for detailed studies which help answer at least some of the questions raised seems evident. The late Professor Sathe is known to have spent several years collecting the data for precisely such a project. One hopes that the project has not been given up after his passing.

An aside: One of the interesting parts of the Chatterjee-Sorabjee exchange is how they have both sought to draw support from the views and judgments of former Chief Justice J.S. Verma to buttress their own positions. The EPW editorial, by contrast, reminds its readers that Justice Verma is also to be remembered for his contribution in another landmark case:

"A dangerous example of such judicial mindlessness was the 1995 Supreme Court benchverdict in favour of Hindutva which put the seal of approval on the politico-religious philosophy of the saffron brigade. Surprisingly enough, J S Verma, the then chief justice who headed the bench that passed the verdict, was to lament in May 2002 following the Gujarat riots that his judgment was being “misused” by many for narrow interests. In a lecture in Jabalpur recently, justice Verma asserted the need for “greater expertise and self-restraint of the judiciary…eschewing personal predilections and emotive responses.” A belated realisation when the damage had already been done! "

The EPW editorial got its facts wrong on one small point : at the time when the decision in Dr. Ramesh Prabhoo v. Prabhakur Kunte (1995) (popularly known as the 'Hindutva' case) was handed down, Justice Verma was not yet the Chief Justice of India (his tenure as CJI lasted from March '97 to Jan '98). However, the editorial is right in noting that whatever may have been Justice Verma's motivations as the principal author of the decision, it was perceived by the Hindu right parties, and by those who backed them, as a victory for their political views.

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