Opinion | Populist impulses and a question of judicial overreach

Apart from independence from politics, the judiciary also needs independence from popular interest.” These prophetic words were asseverated by former Chief Justice of India (CJI) S.H. Kapadia. Going against this touchstone of the rule of law, a large number of judgements appear to have reinforced local populist narratives in India. In one such instance recently, justice S.R. Sen of the Meghalaya High Court said in a ruling that “political leaders were too much in a hurry to get the independence... thus creating all the problems today” and “India, since [it] was divided on the basis of religion, should have also been declared as a Hindu country”.

Often, such populism is fed by grandiose executive judgements that seem to take charge of some aspects of the country’s governance. Article 142 of the Constitution makes this possible. It allows the Supreme Court to “make such order as is necessary for doing complete justice” in a case. Lavanya Rajamani, professor of international environmental law, University of Oxford, presents one such example: “In the T.N. Godavarman versus Union of India case, the Supreme Court defined a ‘forest’ in the absence of a definition in the Forest Act and, in so doing,...it took over the governance of the forests in India.”

One may be tempted to argue that there’s no harm when a political vacuum is filled by the ostensible benevolence of the judiciary. It sounds like a fair proposition. However, Indian history is replete with examples where the costs of such judicial interventions have outweighed their gains. Before coming to specific examples, a brief analysis of how the roles of the executive and judiciary got blurred is a must.

The very first amendment of the Constitution in 1951 marked the beginning of a long-drawn battle between the executive and the judiciary that took land reform statutes beyond the scope of judicial review. In his book, Courting The People, Anuj Bhuwania writes that Jawaharlal Nehru kept amending the Constitution to reverse court decisions in order to push land reforms. The judiciary fought back in Golaknath versus State of Punjab, a 1967 case which barred Parliament from curtailing any fundamental right assured by the Constitution.

In 1971, after getting a gigantic electoral mandate, Indira Gandhi with all guns blazing launched a vociferous attack on the ethos of the judiciary, portraying the institution as anti-poor and anti-socialist. The 24th amendment reversed the Golakhnath judgement. Justice A.N. Ray who dissented in the Kesavananda Bharati case was made the CJI, superseding three senior judges. Justice H.R. Khanna—the lone dissenter in a habeas corpus case during the 1975-77 Emergency, who was next in line to become the CJI—was superseded by justice M.H. Beg.

It was in the above context that the courts had to outdo their political masters and regain credibility. Bhuwania argues that the Supreme Court, too, in search of popular legitimacy, responded by mimicking Indira Gandhi’s populism. To redeem its image, the judiciary found itself partaking in the sins of the political class. The rule of locus standi was relaxed; technical barriers were removed; evidence could be gathered by a court-appointed commission; and lax procedural requirements gave way to deprofessionalized justice. Courting The People cites several examples where public interest litigations (PILs) filed by M.C. Mehta led to Delhi’s urban transformation. This also resulted in large-scale deindustrialization of the city, as “green judges” ordered the relocation of 168 large industries, rendering thousands jobless. Similarly, Delhi’s vehicular pollution case led to the conversion of all public transport vehicles to CNG from diesel or petrol, resulting in a sudden drop in public transport supply and an increase in private vehicles.

In a World Bank working paper, Public Interest litigation In India Overreaching Or Underachieving?, Varun Gauri says that claimants from advantaged classes have a 73% probability of winning a fundamental rights claim, compared to 47% for non-advantaged classes. Perhaps, shibboleths need to be dispelled vis-à-vis the judiciary’s public interest activist “avatar”. We now have a disproportionately large financial burden on the original beneficiaries of well-meaning PILs—the poor and the marginalized. Further, we have judges with larger-than-life public images. Procedural supremacy has suffered, and doubts have arisen over the competence of our courts in assessing policy interventions.

The judiciary must evolve a set of guidelines that lays down a procedure in consonance with the executive so that it does not delve into issues which are beyond its domain of expertise. If at all such a necessity arises, the mandate of the Supreme Court’s recently constituted in-house think tank, Centre for Research and Planning,could be enlarged to encompass the necessary academic rigour required for issues related to governance.

With an erratic record of interventions, the judiciary would do well to follow due standard operating procedures. It is not a question of merely achieving the desired outcomes—for, if a precedent of faulty means to achieve such ends is set, then the dignity of the institution could possibly end up being held hostage to the idiosyncrasies of a single judge at its helm.

Prakhar Raj is a Delhi-based legislative and policy researcher