Commentary/Venu Menon

Judicial activism has not lost its shine, but it will result in the devaluation of judicial authority

There are no signs of let-up in the judiciary's pursuit of its agenda of national reform. Its activist image is built on the ruined reputations of the high and mighty, providing a form of entertainment that rivals the best that cable television has to offer.

But there is also a good deal of soul-searching about where all this leads. The subordinate judiciary invites sermons on judicial restraint by its reckless remarks against the political class, and politicians have closed ranks and set about orchestrating a backlash. Still, judicial activism has not lost its shine.

The identification of the judiciary as a countervailing moral force set against a decadent political establishment has snowballed into a national sentiment.

There are grounds for this glorification of the judiciary. The Supreme Court converted its passive potential into kinetic energy and stunned the nation by its resolve to stem the rot, and enforce the rule of law without fear or favour. A procession of prominent personalities passed before it shackled to the provisions of law.

It was the Supreme Court that shattered the myth of immunity that surrounded the controversial tantrik Chandra Swami, and made him vulnerable to the processes of justice. His political patron P V Narasimha Rao also came under the court's scrutiny for his conduct as prime minister. It was the Supreme Court's pressure on the country's premier investigating agency that exposed the colossal politico-economic scam and etched the word hawala in public consciousness.

Yet there is anxiety that the country is being run through court decrees, that a compromised political executive has lost its moral authority to govern and is yielding ground to an over-assertive judiciary. Primarily, this is an anxiety that grips members of the executive and the legislature charged with abdicating their constitutional responsibility, and inviting judicial intervention into their respective domains. The public applauds the court in its activist role.

Constitutional purists worry that the delicate balance between three branches of State has been upset, that an overzealous judiciary imperils the scheme of the separation of powers. This could prove to be true over the long term, but the crisis of credibility that afflicts the executive and the legislature at this juncture makes out a case in favour of the judiciary and its impetus for reform. Aberrations by lower court functionaries cannot be an argument against judicial intervention in the face of abuse or collapse of executive authority.

Judges, it may be argued, do not hold elective office and to that extent are free of the constraints and consequences that dog the decisions of the executive. Therefore the judiciary is free of the profit or political motive. In recent times both the executive and legislature have been racked by partisan and mercenary compulsions. The hawala investigation took on the appearance of a crackdown on Narasimha Rao's political opponents. And the antics of the Jharkhand Mukti Morcha MPs, who allegedly propped up the Rao ministry during the 1993 confidence motion for a price, stigmatised the legislature.

It was inevitable the judiciary would step in to fill the vacuum. When it took over the hawala investigation and removed the CBI from the administrative control of the prime minister's office, the Supreme Court's aim was to restore credibility to the investigation process. It was unprecedented that an investigating agency had been told by the court not to take orders from the highest adminstrative authority. A decision that has been instrumental for whatever progress made so far in the case.

This kind of intervention projects the court as the strong arm of the democratic process and an agent of systemic reform. It is directly the result of a morally weak government conceding ground to the judiciary.

The snag in this scenario is that the court is drawn into playing the role of a surrogate government. In principle, executive authority is usurped by judicial diktat. In practice, it will result in the devaluation of judicial authority.

The court can offer correctives, but it cannot substitute the functions of the government. It cannot play the role of political decision maker. Judicial intervention can restore credibility to an investigation so that the ends of justice are met. But it must not result in the diminution of the exectuve as an institution. The separation of powers emphasises separateness but not mutual exclusiveness.

Judicial activism ensures that the rule of law is upheld. It cannot ensure that the government restores its credibility. That is the dilemma of the moment.

It may be necessary for the judiciary to decelerate its programme of reform. The Supreme Court has presided over a breathtaking range of issues in fairly quick succession: It has busted the multimillion hawala racket; it has humbled the seemingly invincible Chandra Swami; it has pulled up the Election Commission; it has ticked off the chiefs of investigating agencies; it has jailed defiant bureaucrats; it has intervened in the Cauvery water dispute. The list goes on.

The Supreme Court has gone beyond its traditional function of merely interpreting the law. Its zeal for reform is likely to lead it squarely towards the stereotype of a Constitutional policeman wielding his truncheon with reckless abandon, venturing into areas outside his beat.

The irony is that the court's forays into territory reserved for the executive and legislature have met with no moral resistance, simply because the moral collapse of these institutions is the very reason that invties judicial intervention in the first place. Still, there exists the lurking danger of judicial excess that is likely to be committed because of unrestrained intervention into the constitutional space of other institutions.

There is another problem. When executive decisions are subject to scathing judicial review, executive authority is subtly undermined and the court casts itself as a usurper of political authority. When the judiciary handles politically sensitive issues, it may sometimes unleash forces and events beyond its control.

The Supreme Court has come dangerously close to doing this in two specific instances. The court accepted the Ayodhya reference which involved questions of archaeology and history (whether a temple preceded the mosque at the diputed site) and after two years returned the reference to the government without adjudicating it. It was an exercise that lowered the stature of the judiciary. The court was slow to recognise the political fallout of a vexed issue such as Ayodhya.

The same indiscretion is reflected in the apex court's pronouncements on Hindutva in the Manohar Joshi election petition case which legitimised the BJP use of Hindutva as a campaign plank. The judgment is not vigilant to the subversive content of Hindutva as a political slogan. It served as the BJP clarion call to mobilise the surging mob that razed of Babri Masjid.

The question that needs to be asked of the judiciary is whether it can confine itself to a purely legalistic and philosophical examination of volatile and divisive issue such as Hindutva. The Supreme Court appears to have adopted a potentially perilous course in sanctifying the use of the slogan by political groups such as the BJP and the Shiv Sena, whose threat perception is likely to increase in the wake of the verdict.

It is incumbent on the judiciary to exercise caution when it scrutinises political questions. Its verdicts must be unassailable. Most important, they must not defy implementation. An order that is difficult to execute subtracts from the majesty of the court. And when that happens, the judiciary would lose its relevance as a repository of public faith.