Sunday, March 02, 2008

How ‘activist’ IS the Indian Supreme Court?

The issue dated Feb 23-29 of the EPW has a somewhat intriguing editorial on the Indian Supreme Court. I describe it as ‘intriguing’ because the editorial does not, as EPW editorials typically do, focus on a recent, topical issue. Indeed, many of the events and issues described in the editorial are fairly old ones.

This does not, however, mean that the analysis offered is in any way dated. Instead, the editorial takes a view of things which is quite different from regular editorials in the mainstream press, where the Supreme Court is typically portrayed as a heroic institution that regularly seeks to serve the interests of ordinary citizens by bravely taking on a recalcitrant executive and a somnolent legislature. The EPW editorial in question urges us to consider a different scenario:

[T]he Supreme Court judgments in recent years do not indicate any uniform pattern that would either justify the fears of the other two wings of the troika, or strengthen the hopes of the citizens who may be banking on the judiciary as their saviour.

This is how the editorial elaborates upon this conclusion:

Judicial activism is guided by the principle of selectivity, depending on the value judgment and class biases of individual judges. In fact, some of their verdicts reflect the convergence of the interests of the troika [i.e., the three wings of government] – on matters like reinforcement of draconian laws and prosecution of political dissenters or even innocent citizens, on the plea of fighting terrorism. The refusal of bail to the well-known social activist Binayak Sen (accused of being a Maoist) by the Supreme Court has not drawn any protest from MPs. Afzal Guru’s situation in the Parliament attack case is yet another instance of the collabo­ration of the executive, the legislature and the judiciary in nailing a suspect (since the actual perpetrators of the crime can no longer be apprehended and punished), because of guilt by association – a debatable concept that still rules the archaic judicial system in India.

Here, the editorial refers to the Supreme Court’s dismal track record on issues relating to preventive detention, emergency powers, and national security laws. This record has attracted the attention of seasoned commentators and court-watchers, and has been mentioned in previous posts on this blog here, here and here.

The EPW editorial identifies other crucial areas where the Supreme Court’s activism has been tempered by a spirit of realism and self-interested conduct:

The judges have also not extended their activism in the direction of changing the system. At times, their judgments even appear to acquiesce in the perpetuation of corruption by the legislators – the most shocking instance being the April 19, 1998 Supreme Court verdict in the Shibu Soren case that said that MPs who voted by accepting bribes enjoyed a constitutional immunity from prosecution! Quite understandably this judgment did not create any rift between the legislature and the judiciary

The editorial concludes on a sobering note:

Isolated acts of judicial activism, devoid of any sense of social responsibility and political understanding, but driven merely by individual humanitarian concerns or confrontational instincts, cannot be a substitute for the more important task of cleansing the troika – purging it of criminal legislators, corrupt administra­tors, as well as self-righteous partisan judges.

While I found the analysis offered in the editorial persuasive, some of the cases referred to here are more than a decade old, and a reference to more recent judgments would have helped make the contemporary relevance of this claim more striking. But that is perhaps a harsh quibble.

The editorial poses a challenge to contemporary legal scholars, who should take the EPW’s claim as a hypothesis that should be rigorously tested in empirically grounded research that focuses on the body of work of the Supreme Court across a range of issues where judicial activism has been known to have had an impact on public policy issues in India.

Update: The one topical issue that the EPW editorial does deal with (through a brief reference) is the case of Dr. Binayak Sen, though it is unclear whether that case was the principal motivation for the editorial. Tehelka's issue dated Feb 23 featured a cover story on Dr. Binayak Sen, titled 'The Doctor, the State, and a Sinister Case.' The author of this detailed story is quoted as saying that 'the untenable imprisonment and victimisation of Dr. Binayak Sen, a heroic humanitarian from Chhattisgarh, exposes Indian democracy as increasingly hollow.' I suspect that not everyone reading this piece will agree with the full extent of this claim. However, it is hard not to be moved by the plight of the good doctor, and to wonder about the motivations of the police and other authorities in pursuing this case in the way it has been managed so far. Hopefully, this media attention will draw focus upon the central facts of the case, which has the potential of becoming another test case of the legitimacy of our draconian anti-terror laws.
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