Your Honour, mind your brief, please - for the law's sake!

Judicial activism is a nice thing so long as it does not turn into judicial overreach. There are indications that the courts are developing a tendency to exceed their mandate and stepping into areas where they should be staying off as matter of propriety.

Sample this.

"...The culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever-increasing spirals of consumption leading to economic growth that will lift everyone under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general, and Chhattisgarh in particular."

"Predatory forms of capitalism, supported and promoted by the state in direct contravention of constitutional norms and values, often take deep roots around the extractive industries. In India too, we find a great frequency of occurrence of more volatile incidents of social unrest, historically, and in the present, in resource-rich regions, which paradoxically also suffer from low levels of human development. The argument that such a development paradigm is necessary, and its consequences inevitable, is untenable. The Constitution itself, in no uncertain terms, demands that the state shall strive, incessantly and consistently, to promote fraternity amongst all citizens such that dignity of every citizen is protected, nourished and promoted..."

 Your Honour, mind your brief, please - for the laws sake!

The courts are increasingly speaking the language of the NGOs fighting the government's policies - and that is worrisome. AFP

This is an extract from the order of the Supreme Court on Salwa Judum, the tribal defence movement promoted by the Chhattisgarh government to counter the Maoist menace in Dantewada district. The bench’s order refers to Joseph Conrad’s celebrated novella Heart of Darkness and draws parallels with the situation in the state.

Conrad’s three-part book of the early 20th century, dealing with the protagonist’s experiences in harsh and inhospitable Congo, depicts the inherent evil in men. And how the evils are masked by the idea of civilisation. Civilised people keep creating morals to mask the truth about their negativeness, it says.

On the face of it, there’s nothing outrageously gross about the bench's worldview. But scratch deeper, and it becomes clear that the bench is taking a clear ideological position. It raises its voice against the policy of liberalisation and links it to the culture of greed and selfishness prevalent in society.

The honourable bench ignores the fact that Maoism existed even before the economy was liberalised and the trouble in the tribal hinterland has more to with the continued mismanagement of affairs by successive governments and officialdom than any ideology.

Here’s another one.

"In the name of globalisation, liberalisation and development, don’t marginalise the poor. Why is there a proliferation of militant activities (in the country)? That is because the poor are being pushed to the wall."

This was the observation of the Supreme Court bench hearing the plea from Uttar Pradesh’s farmers aggrieved at the government’s decision to sell off their land — it was acquired originally for industrial purposes — to real estate developers.

Again, nothing morally wrong with the court's view. But why stray from the facts of the case and objective understanding of evidence to get into issues such as globalisation?

The courts are increasingly speaking the language of the NGOs fighting the government's policies and that is worrisome. It makes the government look morally hollow. It does not augur well for democracy when judges wear their ideological predilections on their long sleeves.

To be sure, the courts have moved in to fill the vacuum created by governments and legislatures that fail to do their duty. Most of the interventions have also been good for the country. This is one institution the citizens still look up to with a lot of respect and the judiciary has not disappointed.

Judicial activism took strong moral roots in the immediate aftermath of the Emergency of 1975 and has been crucial to the protection of individual rights and justice for the disadvantaged. Public interest litigations have been a great boon to the country and the significance of the intervention of the judiciary in the 2G spectrum and the Commonwealth Games scandals cannot be overstated. When the executive was reluctant to act, and the investigative agencies had lost their autonomy, the courts stepped in to apply the right corrective.

But there are indications that the courts are beginning to stray across the line that separates benevolent activism from judicial over-reach. Many judges make observations that far exceed their core brief of interpreting the law. The chief justice of India had recently advised judges to curb the temptation to go beyond the facts of a particular case and make pompous statements but many of them have been doing precisely that to suit the public mood.

The denial of bail to the 2G scam accused appears to be a case of the judiciary pandering to the public mood of anger against corruption. While there’s nothing technically wrong in keeping the alleged scamsters behind bars, many in the legal fraternity believe it goes against the established legal convention on bail pleas where bail should be the rule rather than the exception - and that it should be denied only when there is risk that the accused will abscond or interfere with the investigation.

Worse, the apex court seems to be taking on jobs it was never expected to do. A few days ago, a Supreme Court bench set up a Special Investigative Team to oversee the probe into black money. The bench was apparently unhappy with the pace of the investigations being carried out by government's agencies. It was a clear vote of no-confidence against the government. But it also reflects the impatience of the court. It cannot go on creating SITs for every issue where the government appears to be dragging its feet.

For the moment, the public looks at courts as heroic defenders of their interests. But this goes against the constitutional scheme of the balance of power.

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Updated Date: Jul 08, 2011 10:47:00 IST