What would you call an institution that can overturn any policy adopted by democratically accountable governments; whose decisions are final, and cannot be reconsidered in any other forum; and which can throw into prison anybody who criticizes it? What would you call this institution accountable to nobody but itself, which has the sole power to appoint its own members and the sole power to decide if one of its own is guilty of a misdemeanour?
In India you would call it the Judiciary.
Cheered on vociferously by the freedom-loving media and its viewers/readers, the judiciary for about a decade, has been taking over more and more functions of government, until finally on January 11, 2007, the decisive judicial coup d’etat took place. By a judgement delivered on this day, the Supreme Court gave itself the power to strike down any law if it violates fundamental rights, resulting in the violation of the basic features of the Constitution. It is important to remember that constitutionally, no fundamental right is unconstrained, ‘reasonable restrictions’ being necessary to ensure that every citizen can enjoy these rights. Further, no right is beyond interpretation – does ‘right to equality’ entail affirmative action, for instance? There may be contradictions between fundamental rights; say between the right to equality of individual citizens and cultural rights of minorities. What exactly are the features that constitute the ‘basic features of the constitution’?
On these and other questions, there is now one final arbiter – the Supreme Court. In other words, the tensions and contradictions generated by democratic functioning – in which different and often contradictory interests must be balanced by governments that can be recalled by the people through elections – are now to be settled by a body that is under no pressure whatever from citizens. Indeed, this alarming feature is precisely seen as its strength. It is advised by ‘experts’, and supposedly takes its decisions free from any other consideration than the rationality of the arguments presented before it.
Social movements and political parties must of course, take full responsibility for preparing the ground for this coup d’etat. Whether on the question of the demolition of the Babri Masjid, the Sardar Sarovar Dam or the mandatory universal iodization of salt, recourse to the Court had become the political weapon of choice. The Supreme Court, it was assumed, would listen carefully to arguments on both sides and take the right decision on whether there had been a temple at the site of the masjid, whether the height of the dam should be raised, and on who benefits by the universal iodization policy. Each question a minefield of political interests, on each side a battery of experts and reams of facts, but out of this welter of conflicting interests and contradictory world-views, ‘The Truth’ was to emerge, as discovered by the infallible judges of the Supreme Court. This truth would necessarily be in the best interests of society as a whole.
Consider some decisions of the Supreme Court and other levels of the judiciary in the recent past:
In July 2006, the City Civil Court of Bangalore issued a restraining order on labour unions, forcing them to remain silent about extensive labour rights violations in garment export units in the city. The restraining order was issued at the request of the management of the units concerned, without any input from the defendants. The hearings are now on, but until the court takes its decision, the retraining order is in place. If the trade unionists continue to document and make public these violations (including physical abuse, non-payment of over-time wages and so on), they are liable to be jailed for contempt of court.
In September 2006 the Kerala High Court struck down the Kerala government ban on colas, citing violation of natural justice since the government had not heard the cola firms, basing the ban on a report by Centre for Science and Environment. (Apparently the CSE was not expert enough. Who decides who is the expert whose views count? Why, the court of course.)
In December 2006, the Supreme Court refused to issue a stay order on construction at the Vasant Kunj Mall site in Delhi. This, despite an affidavit from the Ministry of Forests and Environment that the topography of the site is similar to that of a ridge, requiring that environmental impact of construction should have been assessed beforehand. The judgement held the Delhi Development Authority culpable for having auctioned the site without requisite clearances, but since the corporate entities involved in the construction were not aware of this fact, they should not be penalized. Construction is on in full swing, while conservationists have filed a review petition. By the time it comes up for hearing, it will be too late to reverse the decision even if incontrovertible evidence were to emerge that there is irreversible ecological damage.
On the other hand, lack of awareness of the illegality of an action has never worked to the advantage of thousands of slum dwellers evicted by court order over the last decade. In one such judgement in 2000, the Supreme Court, denying that the government had any responsibility to find the estimated three hundred thousand people alternative accommodation, declared, ‘Rewarding an encroacher on public land with a free alternate site is like giving a reward to a pickpocket.’
The Delhi High Court recently ordered the implementation of the Conditional Access System (CAS) for television channels in the metros. What is the ‘public interest’ involved in the CAS? None at all. In fact, since the implementation of CAS, the newspapers are full of complaints from aggrieved consumers, who in this era of the glorious free market, find their freedom of choice severely curtailed. Why not permit consumers the choice between CAS and the older system? Precisely because the CAS would not be voluntarily chosen by consumers. The average consumer will have to pay a much higher fee for receiving pay channels, her choice is limited to channels made available by the cable network, she has to pay for all the channels of a given company even if she wants only one. In whose interest then is the CAS? Purely in that of the mega network companies whose profits are reduced by the unorganised functioning of hundreds of local cable operators who were giving us the channels we wanted, at a reasonable rate in our neighbourhoods.
In short, judgement after judgement at various levels of the judiciary that have consistently benefited corporations at the expense of consumers, project-affected people and the environment; and management at the expense of workers.
In our democracy, fallible and beleaguered though it may be, every institution – at some point, in some forum – can be criticized. Not so the Courts. Recently though, a judge of the Supreme Court Markandeya Katju, wrote that ‘contempt of court’ needs to be scrapped except with regard to an action that makes the functioning of the judiciary ‘impossible or extremely difficult’. This is a welcome statement. Perhaps one may take his Lordship at his word and criticize one of his own judgements?
In December 2006, a two-judge bench of the Supreme Court, including Justice Katju, substantially modified the recently notified Domestic Violence Act, which gives married women the right of residence in a shared household. Declaring the term ‘shared household’ to be “not properly worded” and “the result of clumsy drafting”, the court said that it should mean only a house belonging to, or taken on rent by the husband, or one belonging to the joint family of which the husband is a member. In this case, since the house belonged to the mother of the husband, the wife was dispossessed from it. The Domestic Violence Act expresses a long-standing demand of the women’s movement, and as framed, intends precisely that a woman has a right to live in whatever house she and her husband inhabit, so that she cannot arbitrarily be thrown out of it when a marriage breaks up. The expansive definition is intentional, not a result of ‘clumsy’ drafting. Essentially then, the very remedy intended by the law has been limited by this judgement.
But the right to criticize is only the preliminary step. What about re-opening Supreme Court decisions? What about judicial accountability? The latest bill on judicial accountability is limited in very serious ways. It addresses only the question of complaints against judges, and even in this, restricts the powers of investigation to members of the judiciary. As former Union Law Minister Shanti Bhushan remarked irascibly in an interview, this is like permitting only doctors to investigate doctors and thieves to investigate the misdeeds of other thieves!
But more importantly, accountability is not conceived of in wider terms. A Supreme Court decision is not necessarily the right one, conceded the previous Chief Justice YK Sabharwal, but it is the final one.
Should there be any absolutely final, non-negotiable decisions in a living democracy?