The ruckus over Prime Minister Narendra Modi‘s observations as to whether public perceptions and five-star activists were driving court verdicts is an instance of dreaded shoot and scoot journalism. It is a classical case of half knowledge in action at certain TV news channels.
There was nothing new in his comment that kept the Opposition and the mainstream media busy haranguing against PM for almost two days. Mr. Modi merely paraphrased what different chief justices of India (CJIs), Supreme Court judges, high courts and other legal entities have stated over the years.
Mr. Modi’s predecessor, Dr. Manmohan Singh, had also voiced concern over certain aspects of judicial activism and public interest litigations (PILs). He had also done some plain-speaking on encroachment of the Executive turf by judicial activism in his speeches during his two tenures as Prime Minister. Did Loudmouths cry hoarse over Dr. Singh’s observations that would be elaborated later?
Even the appellation ‘five star activists’ for foreign funded NGOs is an old hat. Mr. Modi has been using this term for more than a decade. He perhaps spun this label in London while addressing a meeting in London on 18th August 2003.
Mr. Modi’s observations appear muted compared to what certain legal luminaries have stated boldly, honestly and emphatically to stem the growing rot within the judiciary. PM’s speech should have thus served as agenda for a serious debate on the nexus between judicial-NGO-media activism that has thrived largely due to governance-cum-legislative deficit.
The critics distorted PM’s balanced speech out of context. Why they overlooked judiciary’s loud introspection over judicial populism & corruption over the years?
The Loudmouths from the Opposition parties and the TV channels, who accused Mr. Modi of the Contempt of the Court, thus owe an apology to the nation for lowering the dignity of PM’s office and for vitiating public discourse.
Before recalling mind-boggling observations made by eminent CJIs and other judges, we need to recapitulate what PM said while addressing the Joint Conference of Chief Justices of States and Chief Justices of High Courts on 5th April.
As the Government often does not issue the English translation of the text of PM’s speeches delivered in Hindi, we have to rely on news reports published by reputed dailies.
According to a news report in one national daily, Modi said, “It is never too difficult to deliver justice within the boundaries of the law and Constitution. But it is very difficult to find the truth between perception and reality. It must be pondered over whether five-star activists are driving the judiciary today… if havoc is created to drive the judiciary. It has become difficult to deliver justice in an atmosphere of perception.”
Another national quoted PM as saying “The judiciary is not as fearless today as it used to be ten years back. Are five-star activists not driving the judiciary? Are they not attempting to do so? Judges fear what the reaction of five-star activists would be when they render justice as per law and as per Constitution.”
The same daily also quoted Mr. Modi as saying: “It is not difficult to dispense justice as per Constitution and law. But while doing so, judges must differentiate between perception (created by social activists) and fact.”
Turn now soul-stirring observations made by legal luminaries about the decay within the judiciary over the last 15 years.
The issue of perception-driven verdict was aptly elaborated by the then CJI S.H. Kapadia in January 2012 while presiding over the Nani Palkhivala Memorial Trust Lecture.
Justice Kapadia reportedly observed: “Apart from independence from politics, the judiciary also needs independence from popular interest.”
He averred: “If an order is not in favour of a particular group, then the judge faces a backlash. An atmosphere is created whereby pressure is exerted on the judge.”
Way back in July 1998, Press Council of India chairman and former Supreme Court judge P B Sawant expressed disquiet over the populism cult and corruption in the judiciary.
Addressing the high court bar association in Nagpur, Justice Sawant said, “These two are very disturbing developments.” He said corruption was happening at “some place at all levels” and even if one or two judges were corrupt, it marred the image of the entire judiciary.
According to UNI report published by rediff.com, he stated that the populist trend among certain judges was more damaging than corruption. In the garb of judicial activism, things were done to humour the public opinion.
As put by the news report, “Justice Sawant said that instead of playing to the gallery, a judge should be ready to take the podium and ‘swim against the tide’. But in the garb of judicial activism, these judges were laying down wrong laws and precedents. He said populist judgments adversely affected the entire society.”
A wacky instance of such perception-driven verdict is Supreme Court’s ruling extending the definition of fundamental right to life to the right to sleep (in a public place) in February 2012. This interpretation of the Constitution was done by a SC bench while ruling that Delhi Police had violated this right while acting against a sleeping crowd at Baba Ramdev’ Rally in Delhi under a suo-moto case.
This led Justice Kapadia into doing some plain-speaking on judicial activism. In his lecture on ‘Jurisprudence of Constitutional Structure’ in August 2012, he stated that judges should not govern the country. They should not frame policies. They should apply “enforceability” test on the verdicts such defining right to sleep as a fundamental right.
He also reprimanded the civil society activists for questioning Parliament’s authority to frame laws and by draping themselves with “we the people” authority.
Justice Kapadia is not the first CJI to articulate the need for judiciary exercising self restraint on judicial activism. Way back in 1999, CJI Dr. A.S. Anand stated: “With a view to see that judicial activism does not become ‘judicial adventurism’ and lead a Judge going in pursuits of his own notions of justice, ignoring the limits of law, the bounds of his jurisdiction and the binding precedents, the courts must act with proper restraint and self-discipline.”
Inaugurating the golden Jubilee Celebrations of Rajasthan High Court, Justice Dr. Anand added: “The danger of the judiciary creating a multiplicity of rights without possibility of adequate enforcement is a real one. It must be guarded against. The judiciary should not become an institution of mere form bereft of substance.”
As put by Jusice Dr. Anand in his speech, which is available at Eastern Book Company’s website, “There are real limits to what the judicial process should attempt to accomplish and the judiciary should resist the temptation to cross those limits. The decisions of the courts should be within the zone of juridical legitimacy.”
According to a news report in a business daily published in March 2015, Madras High Court has ruled that judicial activism cannot encroach on other organs of democracy. It is here also pertinent to quote a comprehensive analysis of judicial activism penned by ex-Solicitor-General of India T.R. Andhyarujina in the Hindu dated 6th August 2012.
Listing several instances of the judiciary interfering in purely policy and routine governance issues, Mr Andhyarujina pointed out that the Supreme Court has made an order even in a military operation.
He added: “In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages.” Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”
This shocking case might have perhaps rankled in Dr. Manmohan Singh’s mind in August 2006 when he identified one of the challenges faced by the society as: “the judiciary-executive relationships and the legislative tools that can be used to tackle the menace of terrorism while respecting human rights.”
Speaking at the Golden Jubilee of the Indian Law Institute, Dr. Singh also shared his unease about the quality of public debate. He observed: “In a functioning democracy like ours public debate is an important mechanism for facilitating the formulation of both laws and policies. They influence the interpretation of law and influence legislation.”
Inaugurating a conference of Chief Ministers and Chief Justices of High Courts on ‘Administration of Justice on Fast Track,’ in April 2007, Dr. Singh stated public interest litigations (PILs) have great utility in initiating corrective action but these cannot become vehicles for settling political scores. “We need standards and benchmarks for screening so that only genuine PILs with a justiciable cause of action based on judicially manageable standards are taken up. This will also ensure consistency in judicial pronouncements”. He suggested that the Supreme Court could take a lead in framing rules in this regard.
Inaugurating the Commonwealth Law Conference in February 2011, Dr. Singh said: “it has to be ensured that the nonnegotiable premise of the constitutional scheme –defined as the basic structure of the constitution is not subordinated to political impulses of the moment or to the will of transient majorities. Also while the power of judicial review must be used to enforce accountability, it must never be used to erode the legitimate role assigned to the other branches of government.”
As for appellation ‘fire star activists’, it aptly captures the spirit voluble NGOs who frequently fly abroad to attend lavish international conferences on environmental and human rights agenda as defined by the West. Some of them NGOs also finance the visits of journalists to conferences or sites to further their agenda in public discourse!
All NGOs and civil society activists are not paragons of virtue. Many of them aggressively push narrow and distorted agenda to appease their foreign donors. They are averse to showing a holistic understanding of rights of one section versus rights of the other section and arriving at a balanced resolution of complex issues. They don’t factor in constitutional duties of the citizens in their agenda. Above all, dubious NGOs are reluctant to making their operations 100 percent transparent and filing income tax returns. Some of the dubious ones circumvent black-listing by floating new NGOs.
With this ground reality, Loudmouths should introspect whether they are highly biased against Mr. Modi. They must make amends to improve the quality of public discourse which Dr. Singh considers as vital for ensuring transparency in decision-making process in the country.
By: Naresh Minocha
The article was first published on the author’s blog