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Of judicial activism and executive autonomy

Is the judiciary a functioning anarchy? Yes, to an extent. But it is less so than the executive and the legislature if they behave in berserk fashion. The judicature has a great stature and structure of power under the Constitution. It enjoys independence, immunity and authority. But some of the appointments are unscientific because the process is by means of an untrained, though high-power, “collegium.” And the choice of candidates has sometimes been intriguin g.

There are a few fundamental problems relating to the administration of justice where potential conflicts between the judicative, legislative and executive wings are likely to create imbroglios and confrontation. One such situation is where parliamentary privileges, which are large and undefined, may extend to challenging even judicial power. Once Tamil Nadu Assembly Speaker P.H. Pandian reversed an order of the Madras High Court sentencing an accused to imprisonment claiming that the House, of which he was the presiding authority, was higher than the court as it represented the people. Luckily, the Chief Minister of the day intervened, and sensibly and successfully moved the House to cancel the Speaker’s order and saved the rule of law.

Even now, on the pretext of meting out punishment for breach of privilege some legislatures sometimes deprive members of the House, the media or the public of their human rights. When courts intervene, jurisdictional issues arise. The law is vague and vagarious, and a consolidated code is absent. Legislatures have failed to enact such a code. While the court intervenes under Articles 26 and 32 to defend citizens’ rights, extraordinary impasses and riddlesome deadlocks created by the directives from the Chair and contrary writs of the judiciary make the law enigmatic. The powers, privileges, and immunities of the legislatures and legislators deserve to be defined by statute.

The executive also has occasional clashes with the judiciary. When the government passes orders that violate the fundamental rights in their broader dimensions, or connive at environmental pollution or social injustice, or act arbitrarily, the court is bound to intervene. This is, of course, obligatory judicial activism. The unconstitutional, illiterate campaign carried on against this progressive development under the guise of executive autonomy amounts to corruption and absolutism. The court’s authority extends to reviewing the administration’s illegal action. Judicial failure here spells the breakdown of the Constitution, although some robed brethren go to bedlam extremes.

John Marshall and Earl Warren, two great Chief Justices of the United States, were monumental activists who wore radical robes much to the displeasure of some Presidents. Law Lords Atkin and Denning of the United Kingdom, the rarest of the rare, were protagonists par excellence of judicial activism, although some other Law Lords were allergic to their performance. Justices M. Patanjali Sastri and K. Subba Rao, once at the acme of the Supreme Court, acted with daring and discipline to defend human rights and uphold hallowed values whenever these were invaded even to a small degree by the administration or violated by the legislature. They were inspired by a dynamic vision derived from the basic structure of the Constitution and were motivated by a militant mission, oath-bound, to defend every Indian’s sacred rights under the paramount law of the Constitution — “a consummation devoutly to be wished.”

These great judges are avatars of judicial activism. To retreat would have been to betray the suprema lex. This is the finest hour of curial power at a sublime level. To denigrate it as adventurism will be cheap. To revert to atavism will be too jejune to be sound jurisprudence. But to abuse this jurisdiction beyond its severe restraints out of populist publicity will be treachery, terrorism and travesty of a great responsibility. “PILcoholism” will never be a drug addiction.

The biggest issue complicating civil litigation that our political leaders fail to face up to is the ancient, cumbersome and exotic Code of Civil Procedure, 1908, which regulates the processes of the subordinate judiciary in many facets of justice administration. This fossil of a law is of British Indian vintage and no longer suits our social milieu or economic realities. For the common man, access to justice at the trial and first appellate levels is important, and this is exactly where unpardonable neglect in simplification of statutes, directness of drafting, and lucid, easy access to justice, is seen. The sooner the CPC is replaced by a small and plain code, the better for the little Indian’s right to justice.

Another illusion that confuses the common man’s knowledge of law is the profusion of appeals, revisions and reviews. These are a burden on the public exchequer and the thin purse of the small people hungering for final relief and fair justice. Goondaism, terrorism, corruption, mafia manipulation, the class bias of the bureaucracy, police indifference and politicking by Members of the Legislative Assembly and Members of Parliament leave no room for hope of a just settlement of disputes. Everyone hates logomachic litigation and multi-decked judicial gambles but there is no alternative. Even lawyers have no ‘settlement’ culture.

No social justice transformation from the specious and vexatious system of justice administration has yet been seriously attempted by Bar, Bench or Parliament. This is because party politics and power operations are in the grip of the proprietariat who least bother about the have-not humanity’s desire for justice. Even today, as in Adam’s day, Cain is not Abel’s keeper. The rich rule and the poor suffer. More coordination among the troika in civilising the justice process is welcome.

Justice Benjamin N. Cardozo of the U.S. once made a creative proposal for a ‘courier’ between the legislature and the court. A short bill creating a forensic courier will meet the need, and eliminate avoidable litigation. At present, courts do not communicate with legislatures: lawyers are left to argue at length and litigants to lose case and cash.

A sociological analysis of the dialectical materialism of litigative anarchy leads to the conclusion that the law in court is perhaps a part of the ‘superstructure’ adapting itself to the changing domination of economic forces and new class relations. The rule of law is only another mask for the rule of a class. Judges, like other ruling classes, regard as the interests of the whole society what is really but the interest of the narrower class in power. For saying this, E.M.S. Namboodiripad, a great leftist leader, was wrongly punished.

Let me cite in support of his thesis two quotations from Professor J.A.G. Griffith’s Politics of the Judiciary (Page 173), the first one by Winston Churchill and the second by Lord Justice Scrutton:

“The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.” — The Secretary of State for the Home Department (Mr. W.S. Churchill) on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C. Deb. Col, 1022).

“The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says ‘Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?’ It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.” — Lord Justice Scrutton in an address to the University of Cambridge Law Society on 18 November 1920 (1 Cambridge Law Journal Page 8).

The ultimate question is: are we a socialist, secular, democratic republic? Are we, the People of India, the sovereign only in form or justly in fact?

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