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Rule of law versus rule of judges

Harish Khare

It is imperative to re-align the judiciary with the same democratic obligations and restraints that are observed by other institutions.

MOTILAL CHIMANLAL Setalvad, the first and the longest-serving Attorney-General for India, is one legal luminary in the post-Independence era who can be justifiably described as a judicial statesman. It was his considered opinion that "we have in truth not the supremacy of the courts but the supremacy of the Constitution." One wonders how Setalvad would have reacted to this September 29, 2006, observation of the apex court, as reported on October 20, in the Hindustan Times: "Rule of law is part of the basic structure of our Constitution. So long as laws are there, government and the authorities have to see to it that they are implemented. If not implemented, it is for us to implement them, otherwise, we will be violating the oath."

From a mandate to interpret the law, the courts have redefined their role as wanting to correct aberrations and shortcomings in every walk of life. Not even animals are beyond the courts' stern eye. Early this month the apex court was pleased to pass directions on breeding of animals in the zoos; a day later, the same court felt obliged to give directions on translocating monkeys from the capital region to Madhya Pradesh forests. No one can be sure what M.C. Setalvad would have thought of this over-involvement.

A concerned and sensitive judiciary is no doubt the most valuable asset of any democratic system. The Indian judiciary has indisputably deepened the rule of law arrangement. This contribution becomes even more critical when we remember that respect for law, its restraints and obligations does not come easily either to the ruler or the ruled in a traditional society like ours. The rich and the powerful believe they have the licence to get away with defying the letter and spirit of the rule of law; the poor and the vulnerable seem to believe that injustice is their lot. The Supreme Court and the High Courts in India can justifiably take credit for having hammered the idea of restraints to power and authority into the minds of those who claim to represent "the people."

In post-Emergency India, this role as a countervailing centre to an actual or potentially authoritarian regime has been seen, in the democratic discourse, as politically correct and even desirable; and, in the post-1991 era of economic reforms, the newly empowered middle classes have applauded the judiciary as it questioned the political leadership's legitimacy as the sole representative of the popular will. As the polity has become more and more fractious, judges have been inclined to practise what Setalvad would have disapprovingly called `supremacy of the judiciary.'

Take, for instance, the apex court's views and approach in the current dispute over reservation for the Other Backward Classes. The court came pretty close to passing an order that Parliament would not take any decision until the bench examined the matter. After the government counsel's protest, the court directed that the report of Parliament's Standing Committee be submitted to it in a sealed cover. After predictable criticism that the judiciary was foraying into the legislature's domain, the court issued a written order the next day to the effect that the Additional Solicitor General had given an assurance that the Standing Committee's report would be given to the court in a sealed cover. The government has not protested thus far or come out with the truth. Any critical evaluation of the judiciary's role is immediately seized upon by middle class discourse-manufacturers as a "confrontation."

Unless our polity and all its branches and officials, including the judiciary, find the wisdom to reverse this trend, the rule of law or rather the Constitution will be in danger of being supplanted by the rule of judges. Directions are given, oral observations made, and judgments passed that the elected representatives of the people — especially those charged with the responsibility of carrying on the administration — find baffling, frustrating, intrusive, confusing, and plain unhelpful. From interpreting the law (and the Constitution), the judiciary has expanded its brief to take a hand in formulating public policy.

In fact the judiciary has contributed to creating a catch-22 situation for the Indian state. On the one hand, the state has been correctly reminded of the lawful limits within which acceptable authority must be exercised. On the other, the judiciary has been singularly indifferent to the consequences of its own orders and directions for those charged with delivering governance. The state is directed by the apex court and the high courts to do this or not to do that, without any regard to the state's capacities of skills, resources, knowledge, information, and administrative talent. There is a totally untenable presumption that the state is all-powerful, efficient, brimming with resources, but it is governed by uncaring and unconcerned politicians and bureaucrats. So to produce good governance, judges must take matters of public policy in their hands!

The Indian state is no exception to the perennial stand-off between order and disorder; and, the Indian judiciary, on the whole, has failed to help the state preserve a just and fair order against those forces and individuals who instigate dissent, defiance, and dissatisfaction or even preach and practise violence.

The result is a conflict between the requirements of a lawful society — as decreed by the higher judiciary — and the compulsions and constraints of a democratic society as defined by the political class. There is an understandable suspicion of the popular will and of the populist; this suspicion has become the middle classes' talisman in the search for prosperity and wealth. But it is the first principle of any democratic society that the legitimacy of the authority has to be anchored in popular consent. No democratic order can sustain itself if its critical institutions practise disdain for the aspirations and welfare of large segments of society.

It is imperative to re-align the judiciary with the same democratic obligations and restraints that are observed by other institutions. No institution can play so pivotal a role as the judiciary does and yet remain beyond any kind of accountability, questioning or scrutiny. This non-accountability is good neither for the judiciary nor for the democratic polity.

The time has come to effect changes in the constitutional balance. The so-called Second Judges Case judgment must be rolled back. By that judgment, the higher judiciary so interpreted Article 124 of the Constitution as to confer on itself the right to appoint its members. In the words of Lord Bingham (during the jubilee celebrations of the Supreme Court of India in November 1999), "one can have no doubt that this decision does all that any decision could do to ensure a politically neutral, professionally distinguished and uncorrupt judiciary." Even most judges will not agree with Lord Bingham's sweeping certificate to the process of selection and appointment of judges.

Any suggestion that the higher judicial recruitment process needs to be re-examined invokes suspicion and opposition from so-called civil society voices. A divided and weak political class has not been able to summon the solidarity — or wisdom — necessary to bring the judicial recruitment process back into the democratic realm as in other democracies. The `Hindutva' judgment naturally raised eyebrows all round and for all its claims to independence and its pro-activism, the judiciary was not able to step in and spare the country its two most recent ignominies — the destruction of the Babri Masjid and the Gujarat pogrom of 2002.

Nonetheless, by now all political parties and leaders must be mature and wise enough to close ranks in order to restore the constitutional balance against judicial aggrandisement. Aside from the political class, the judicial leadership must do something about the infirmities that accrue to any overreaching and unaccountable institution that will not subject itself to any kind of checks and balances. A prudent legal statesman will concede that the post-Second Judges Case impunity regime has generated an unhealthy institutional righteousness and often undeserved illusions of grandeur on the part of individual judges.

All said and done, the judges do know that notwithstanding the presumed judicial detachment, training and temperament, they get involved (to quote Lord Bingham again) "in the cockpit where, in real life, the realities of power and authority are adjusted and settled." In a democratic society, power and authority cannot be exercised for too long by those who have placed themselves above the canons of democratic accountability.

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