EACH INSTITUTION MUST PERFORM ITS OWN DUTIES

What was earlier thought to be a seasonal affliction, worrying but not a cause for either alarm or panic, seems to have turned into an epidemic. For the past few months, India seems to have declared both the legislatures and the executive redundant. Instead judge-made laws have replaced the old custom—decreed, I daresay, by the Constitution of the country, not to mention the conventions of democracy—that laws should be made by duly elected legislators. The judges, apart from their bread and butter role of playing the honest umpire in the event of complex disputes and doling out justice—were entrusted with the onerous task of ensuring that laws made by Parliament and the state Assemblies were in accordance with the Constitution of the day.

That the judges had the power to overrule the wishes of those duly elected by the people, either directly or indirectly, was itself a judicial invention. In the Westminster model, only Parliament has the right to make laws. The judges could not override the wishes of Parliament. In theory, therefore, as I recall the late Mohan Kumaramangalam arguing during the high noon of Indira Gandhi’s socialism, Parliament has the right to decree that all blue-eyed babies born to Indians should be, say, deemed stateless.

It would be a preposterous piece of legislation but the right of Parliament to pass tendentious laws was deemed to be undeniable. Kumaramangalam’s associated argument that Parliament had the right but would never exercise that right is neither here nor there. The point is that since the inception of the Republic (not to be confused with the new TV channel) the absolute right of Parliament to frame laws has always been questioned.

The courts have struck down innumerable pieces of legislation, including the abolition of zamindari, the abolition of privy purses, the right of habeas corpus, a law to streamline judicial appointments and the right of triple talaq. Second guessing the courts have to be one of the compelling imperatives of law makers. Those entrusted with the task of making laws spend as much time determining what is necessary as with what will pass judicial scrutiny. It is not even the “basic structure” of the Constitution that must be adhered to. What is equally relevant is how that loose principle will adhere to the subjective predilections of the judges. This is because legality is not a scientific test that should lead to a fixed conclusion but a test of how a certain body of people will view the issue. And that too is so dependant on the prevailing climate of opinion, conventional wisdom and even fashion. Judgments vary depending on which judge is hearing the case.

Finally, there is the tricky question of jurisdiction.

In recent years, the question of what comes under the purview of judicial review and what should be the prerogative of the executive has troubled the country. Increasingly, in what is being called judicial activism, the courts appear to be more than willing to pass orders on matters that should, ideally, concern the executive.

Last week, to take a random example, the courts banned the sale of firecrackers during Diwali in Delhi, leading to the criticism that the courts are more than willing to impose restrictions on Hindu customs. The criticism is unfair since, the question of animal cruelty involved in Jallikattu apart, the courts have also ruled on triple talak on the grounds of gender justice.

However, the larger question as to whether the sale or ban on fireworks is an executive decision and whether protests in Jantar Mantar can be regulated by the courts, does not appear to have been addressed. All parties to the dispute seem to be open to the idea of the courts passing orders on purely administrative matters. While the respect for the judiciary is admirable, it is worth considering whether or the courts should get into the business of running the country and more particularly, Delhi.

This in turn has prompted questions over the relationship of the judiciary with democracy. In recent years, India has witnessed the growth of a small but influential community of activists that are determined to bypass the pace of change and grievance redressal through judicial activism. Inspired by European notions of “constitutional universalism”, they have sought to impose global norms on a society that is unevenly prepared to abandon local and national concerns.

The recent attempt to force the government to accept an influx of Rohingya refugees from Myanmar is a classic attempt to bypass the political process and concerns over national security and sentiments in the North-East regions of India.

In this case, an absolute commitment to humanitarian ideals has confronted democratic norms. It has also brought to the fore the vexed question of whether a small group of the socalled ‘enlightened ‘have a right to impose their value systems on a larger majority.

There is a larger battle being fought between those who believe that the main task of the judiciary is to safeguard laws made by the elected representatives of the people and those who feel that judges must also set the direction of politics.

It is not a new battle and centres on different philosophies of public conduct. But it is also a battle that is likely to intensify. The controversy needs careful deliberation.

Each institution of the state must be allowed to perform its responsibilities without turf encroachments.

THERE IS A LARGER battle being fought between those who believe that the main task of the judiciary is to safeguard laws made by the elected representatives of the people and those who feel that judges must also set the direction of politics. It is not a new battle and centres on different philosophies of public conduct. But it is also a battle that is likely to intensify.The controversy needs careful deliberation. Each institution of the state must be allowed to perform its responsibilities without turf encroachments.