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Literary Review
Credibility at stake
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While judicial activism is to be welcomed, judgments ought to be practically enforceable. PRATEEK JALAN reviews Arun Shourie's book on the Judiciary-Executive interface.
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BY writing this book, Arun Shourie has done us a service — not because each conclusion is new or indisputable, but because he goes behind the platitudes to hard facts and incisive analysis, making the book credible and thought provoking. This is a detailed study of the Judiciary's ever-expanding interface with the executive government. It is interesting to see how an activist-journalist, who has often written about judges and judgments, now views the Court, from his position as a minister. Shourie concedes that the Court has been an important check against arbitrary government functioning, but here he draws attention to some of the Court's own follies. That said, the book is also very much about the executive government. Shourie begins by noting that government functioning today is characterised by little movement and process oriented routines, to the detriment of merit, efficiency and results. His thesis appears to be that, in the final analysis, courts have been unable to protect us from this crippling lethargy.
The first significant point he makes is that the courts' entry into new areas — ``judicial activism'' — while often salutary, has risked its own credibility. When judgments are not implemented or practically unenforceable, when judges are unmindful of the vast consequences of their pronouncements, the institution loses its efficacy and authority. For example, Shourie documents the Supreme Court's proceedings on bonded labour, initiated by Swami Agnivesh in 1982. But so many years — and so many orders — later, the effect in the ``real world'' is disappointing.
Secondly, Shourie points out that the Supreme Court's celebrated liberal interpretation of the Constitution has been inconsistent and jerky. He gives examples of the expansion of Articles 12, 14 and 21, dealing respectively with the definition of ``State'', the right to equality and the right to life and liberty. Although these provisions have founded most of our human rights jurisprudence, their interpretation by the Court has not always been consistent. Shourie cites many examples to show that the judgments sometimes draw distinctions which are difficult to understand, and makes the point that the Court has to be particularly careful, because each judgment and each casual observation, founds many equally imaginative later judgments. The examples also demonstrate that courts do choose their battles and their weapons. These are often vastly different, although the cases are indistinguishable on principle. This leaves the observer with the uncomfortable feeling that much depends on the particular proclivities and the persuasions of a given bench.
All this leaves the law uncertain, and the government confused. Even an Executive that is mindful of the law finds it difficult to govern its conduct in the face of uncertainty. Shourie documents many examples — the Supreme Court's judgments on tender conditions, on deference to the Executive in matters of economic policy, on seniority of government employees, regularisation and promotion. And, what is worse, while the results of the judgments are vastly different, the principles cited are often the same!
The uncertainty results in greater litigation: time, money and effort, which could surely have been better spent. Shourie's description of some of the litigation involving government employment is telling. Many of the Government's cases are concerned not with lofty issues of policy or big projects, but with disputes involving one clerk, a couple of officers or a few teachers. Although the Supreme Court has often expressed its anguish at the avoidable litigation, the ambiguity of its judgments has, in Shourie's analysis, actually provided an incentive to employees to ``take their chance in court''.
In his concluding chapter, Shourie himself provides a defence — that the courts have performed better than the legislature and the executive, that its activism has been hesitant, that it was not intended to do more than give directions, and that the law it declares can be no better than the laws the legislature makes. But he appears to be disappointed with the motivations, the method and the result. He concludes that the courts' priorities have not always been comprehensible or defensible. It must be remembered, however, that the role of the Court is necessarily limited — it can only decide issues that are brought before it, and its contribution can be, at best, incremental. The problem is exacerbated by the vast burdens of our Supreme Court — cases which would never reach any other Constitutional court. This itself is a result of the vicious cycle to which Shourie has drawn our attention — the Executive is weak, courts get involved in more than they were meant to, their decisions become inconsistent and ambiguous, the Executive is left with no guidance and its decisions become unintelligent and recalcitrant.
In discussing the possible solutions, Shourie saves his final comments for the lawyers. He writes on lawyers' strikes and professional ethics. He cites Gandhiji's practice to challenge the fundamental premise (or excuse?) of lawyers that each litigant is entitled to representation, each accused to a defence.
Whether one agrees with Arun Shourie or not, there is little doubt that he provides much to think about in a profession which generally lacks introspection. And, for an institution which attracts only muted criticism, critiques such as Shourie's serve an important and useful purpose.
Courts and their Judgments: Promises, Requisites and Consequences, Arun Shourie, hardback, Rupa, p.454, Rs. 495.
The writer is an advocate at the Supreme Court.
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