J. S. Verma, Former Chief Justice of India
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express
The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.
Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.
A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.
I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.
Legislative functions
The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.
The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.
Jharkhand order
The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.
It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.
‘Cash for query’ case
This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.
The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.
The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.
Judicial review of Article 356
The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.
In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.
The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.
The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.
The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?
The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.
For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.
Conclusion
The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.
Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24
Saturday, April 07, 2007
‘Judicial activism should be neither judicial ad hocism nor judicial tyranny’
J. S. VERMA, Former Chief Justice of India
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
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