Speaking at a function on Saturday, Supreme Court chief justice S.H. Kapadia sounded a general caution, presumably to his own ilk, on the otherwise very contentious issue of judicial activism. Since he clearly stated the caveat that these were his “personal” views, we obviously can’t see this as some kind of official articulation of the judiciary’s view on this touchy subject.
Reporting the M.C. Setalvad lecture on Canons of Judicial Ethics delivered on Saturday, The Hindu newspaper quoted the chief justice as saying, “Its (the courts) jurisdiction is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government. We do not have the competence to make policy choices and run the administration.”
And in a not so subtle warning about how unbridled intervention could go wrong, the chief justice added, “Judicial activism, which is not grounded in any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary.”
Even though he was making this in a personal capacity, the chief justice was implicitly bringing attention to the fact that the courts have taken over the space, as defined by the Constitution, reserved for the executive; and, that time may have come to revisit this position. Seen in this perspective, strangely there is a connect between the issue of judicial activism and the just-concluded indefinite fast of social activist Anna Hazare: both are an outcome of a governance deficit.
It is something that has to be dealt with urgently; and, it is the governance deficit problem that has to be fixed and not the messenger, as some sections of the polity seem to be signaling by targeting Hazare and his coterie. It is one thing for the government and the polity to feel miffed about a bloody nose, and another to be seen to be vengeful.
The extent of the problem—even if we ignore the government’s amazing inability to battle inflation for the last two years—is apparent from the kind of cases the apex court has had to deal with recently. Almost all of them arise from a governance failure and, worse, the width of judicial intervention is stunning.
Take for instance the judgment on the disputed appointment of the chief vigilance commissioner. It showed that the government, particularly the higher echelons of the bureaucracy, had not done their basic homework on the selected candidate. The ongoing Right to Food intervention by the apex court has opened up for review the entire methodology of the government in identifying the poor and their age-old practice of procurement; not to speak of how the country has come to learn, thanks to some intrepid news reporting, about rotting food stocks even while food inflation bounded into double digits.
Similarly, the various rulings by the apex court on alleged misdemeanours in the sale of second-generation telecom licenses suggest that the government was at the least sleeping on the job, if not deliberately ignoring the vexing problem. In fact, till the court intervened to monitor the Central Bureau of Investigation (CBI), the country’s premier investigative agency seemed to be in the grip of somnolence. Now, like other investigating agencies in the country, the CBI seems to have come alive, begging the question as to why did it have to be this way?
So, whichever way we look, the so-called judicial activism is an outcome of a governance deficit; just as it justified a Hazare intervention that rode on the angst of a middle class dominated by a younger demography. In other words, if the executive had carried out the task it was elected to do, then these interventions would not have happened, or at least the extent of it could have been minimized. And, as the chief justice implied, there is a realization that the limits of such intervention may have been reached, and that a response can’t be put off any longer.
To bridge the governance deficit, the executive has to first acknowledge the problem. The solution is unlikely ever to be simple and painless. But that is what politicians are all about. It is their ability to mobilize public opinion that should be harnessed; Indian politics has a long and glorious history that goes back to the agitation against colonial rule, the imposition of Emergency, and so on. Instead, what is happening is that key members of the polity are either avoiding any engagement with the ongoing controversies, or are content in taking opportunist potshots. Neither is helpful because the governance deficit is a problem that is simply not going to go away. It is time to look it square in the eye.
Anil Padmanabhan is a deputy managing editor of Mint and writes every week on the intersection of politics and economics. Comments are welcome at email@example.com