The court and the political order

By Harish Khare

TOMORROW THE country will have a new Chief Justice when Mr. Justice A. S. Anand leaves office after a three-year innings. Mr. Justice S. P. Bharucha will be the new CJI and he is to retire after just seven months; he will be succeeded by Mr. Justice B. N. Kirpal, who will, within six months, make way for Mr. Justice G. B. Patnaik, who will preside over the Supreme Court for just about 40 days before passing on the baton to Mr. Justice V. N. Khare. In other words, for the next 14 months, the apex court will be presided over by at least three chiefs.

This high turnover is very much built into the institutionalised procedure that has been put in place by the nine-judge Constitution Bench in the Supreme Court Advocates-on-Record Association vs. Union of India case of 1993; nonetheless this succession of chiefs ipso facto would generate a sense of uncertainty at a time when the Bench was in dire need of a purposeful leadership.

By contrast, it can be pointed out that Mr. Justice Anand's three-year tenure as CJI did provide the much-needed judicial stability, that too at a time when the Executive was in the throes of political turmoil and parliamentary confusion. Though it can also be argued that the very fact that Mr. Justice Anand was to have a three-year tenure became precisely the reason for a calculated assault on the integrity of the judicial leadership; it is no surprise that the assault emanated from within the ruling clique, since it was calculated to enmesh the CJI in an unseemly controversy, in the hope of distracting the Judiciary from its obligation to correct an errant and wayward Executive. A kind of uneasy truce has prevailed since the last change of guard at the Ministry of Law and Company Affairs.

In the coming months and years the Judiciary will be called upon to perform a role different from what it has so admirably and so courageously undertaken in the last fifty-odd years. It is widely recognised, at home and abroad, that the apex court has helped flesh out the bare bones of the Constitution that was handed down by the framers in January 1950. In particular, the apex court has emerged as the vigilant friend of the citizen and his fundamental rights against an oppressive and minatory state; thanks to the Judiciary, an Indian citizen remains entitled, at least technically, to provisions of appeal and redress in case of violation of a wide array of rights and liberties. The Judiciary is not likely to be challenged in this Constitutionally-mandated role as the citizen's guardian.

Nor is the Judiciary likely to be called upon to pass any more tests of ``commitment''. The reason is simple: no political leadership is going to have the sufficient clarity of thinking or the courage of conviction in this era of coalitions and its sanctified recourse to expediency and principlelessness, to take on the Judiciary. On the contrary, the Judiciary may be tempted to cross the institutional dividing lines and arrogate to itself the kind of decision-making that rightly belongs to the Executive and the Legislature. In recent months, the Judiciary has been suspected by many of having a weakness for over-activism of an avoidable kind.

These, of course, are the minimum of institutional conditions for the preservation of a liberal, secular, pluralistic and egalitarian political order at home. Yet the mere existence of a supposedly independent Judiciary is not - and, cannot be - an end in itself. An antiseptically aloof Judiciary may be able to play the minimal role of a watchdog, without in effect ensuring that the power and authority is exercised reasonably and responsibly - for the larger good of society. As it is, in our policy discourse the balance has tilted against those who need help the most: the poor and the vulnerable. The Judiciary, too, seems keen on imbibing the idiom and the arguments of globalisation and liberalisation. The judicial reasoning, of late, has allowed itself to be in intellectual awe of the market and its presumed benefits.

More than correcting this creeping bias in favour of the rich and the powerful, the Judiciary would have to undertake another task: to provide a sense of equilibrium, of decency and fair play, in the larger public arena so as to shore up the sagging legitimacy of the political system. Sober and wise judicial leadership would have to ensure that judicial processes and officers are not used by political leaders in their partisan battles.

This abuse of judicial processes and officers in partisan battles was most bleakly manifested in Tamil Nadu this year. For example, it was widely whispered that the former Chief Minister, Ms. Jayalalithaa, was out to influence and manipulate the judicial officers in an effort to get out of her legal entanglements; that a section of the judicial hierarchy was seen as willing to play the former Chief Minister's game did little credit to the sanctity of the Judiciary as an institution.

Nor, for that matter, did the Centre help the Judiciary's credibility by trying to put in place in Chennai judges who would be amenable to see things its way. The calculations that went into the back-room manaeuvring by powerful political personalities, at the Centre and in the State, in re-arranging the Madras High Court must be discouraged if the Judiciary has to retain its efficacy and its moral authority.

In fact, it is possible to argue that what happened in Tamil Nadu was no surprise because the judicial leadership over the last few years has watched - without protest, without correction - the total abuse of legal procedures by the CBI (with very, very active involvement of political leaders in Patna and New Delhi) in the so-called fodder scam. These political partisans make no secret of their desire to use the Judiciary in the new State of Jharkhand to get even with Mr. Laloo Prasad Yadav.

So blatant and so open are these narrow partisan considerations that whatever retribution the judiciary-CBI connivance can visit on Mr. Yadav will not help uphold the magistracy of the rule of law. Indeed the entirely vindictive manner in which the CBI- judiciary combine has acted in the fodder scam case does provide some bite to the argument made by the likes of Mr. Ottavio Quattrocchi that the Indian judicial system was being used to fix political rivals.

Besides intervening to ensure that judges are not used or motivated to get enmeshed in sordid political battles, the apex court would have to see to it that no set of rulers is able to abuse the process of law-making to write into law their social prejudices.

The Prevention of Terrorism Ordinance (POTO) is only the first example of this new tendency towards political and religious intolerance. This burden to stand up to intolerance would be quite exacting because the political rulers would not be averse to brow-beating the judges.

Unfortunately, there are always a few cases of ``deviant'' judicial behaviour; the proposal of a National Judicial Commission is always kept handy by the clever-clever people who have come to preside over the state apparatus. It is here that the Judiciary, especially the apex court, would have to tap its most vigorous intellectual reserves and its judicial instruments to introduce a nobility vector in our collective affairs.

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