Positive judicial activism is possible only when the judiciary can disengage itself from the ruling bloc and position itself on the side of the common people.B.G. KOLSE PATIL
LAW education in India, as elsewhere in the world, is by and large restricted to the affluent sections of society. Consequently, lawyers and judges at various levels of hierarchy are drawn essentially from the upper classes. Their common class origins apart, lawyers and judges are often bound by filial and family ties as well. The procedure of appointing judges through nomination has further strengthened the upper class domination that gradually took shape and crystallised in the years following Independence.
The lack of accountability of judges to any authority in civil society further compounds the problem of a class-protected judiciary that generally enjoys immunity from public scrutiny of its performance. Although the Constitution provides for the impeachment of judges, the option has never been exercised in 50 years. The single instance of an impeachment process was in a sense not allowed to reach its logical conclusion. Justice V. Ramaswami survived the impeachment motion in the Lok Sabha on May 11, 1993, because the ruling Congress(I) abstained from voting. These factors together make the judiciary virtually authoritarian in letter and spirit, although not in practice.
The authoritarian mould of the judiciary was least evident in the Nehru era, when a political class with a popular base constituted the executive. As the Indian National Congress and its principal representatives began to lose the aura of their anti-colonial struggles, the judiciary was required to buttress the authority of the executive. In the process, the judiciary often overtly took sides in ongoing political tussles, the notable instance being the setting aside of Indira Gandhi's election by the Allahabad High Court in 1975. (Her election to the Lok Sabha from the Rae Bareli constituency was set aside on the grounds of electoral malpractice.) Lately, a tendency by the executive to abdicate its function of enforcing the rule of law has led to a situation where the judiciary attempts to seal the breach by stepping into some areas of executive functions. This activist aspect of the judiciary has been lauded and has been criticised.
THE period of political turbulence and of the Partition holocaust immediately after Independence was one in which the Congress proved its mettle. In view of its apparently unassailable sway over most of the country, it emerged as the political organisation capable of guaranteeing safe passage for the affluent classes through rough times. In this period, the Hindu Mahasabha and the Rashtriya Swayamsewak Sangh, which faced public anger and political isolation after Mahatma Gandhi's assassination, retreated into the shadows. The Communists were coming over to the stand of working within the parameters of the "bourgeois" Indian Constitution. The Congress consolidated its leading position over other segments of the ruling bloc, such as big business, landlords, the military-civil-police-judicial bureaucracy and the criminal underworld.
The current dominance of the criminal underworld and the bureaucracy over the political class can be linked to the inability of this ruling bloc to ensure a buoyant, self-reliant and crisis-free economic order. This was as a result of the various built-in constraints in the chosen path of economic development and other impediments acquired on account of the class interests of the ruling bloc. This phenomenon took shape over five decades, but it is now more apparent than before. It is in the context of a weakened executive and the dwindling political authority of the Congress that the Sangh parivar is seeking to replace the Congress as the political patron of the ruling bloc. The Communists have attempted to open a breach in the hegemony of the ruling bloc by working within the parameters of the Constitution, which was designed by the ruling bloc.
The judiciary's conduct in this 'war of position' of the contending classes and their political formations is similar to the manner in which it torpedoed land reform legislation in the early decades after Independence. Then it did not attract the stigma of being activist. In other words, the judiciary has always been activist in the sense of furthering the class interests of the ruling bloc. In recent years, however, it is visible more as an activist, stepping in to perform the executive functions not being performed by the executive, to safeguard the semblance of authority of the ruling bloc.
Land reform legislation in independent India was prompted by the Telengana peasant partisan struggle in the Andhra Pradesh region and intensifying peasant struggles, such as the Tebhaga movement in West Bengal, in other areas. Positive elements of land reform legislations were salvaged by mass-level agitations in West Bengal and Kerala. In Jammu and Kashmir, by contrast, an activist state rather than activist people - spurred by the external political compulsions of conducting a 'peaceful pacification programme' after the first war between India and Pakistan - helped the implementation of land reform measures.
RECENT Indian history is replete with instances of judicial and executive inaction:
* Commercial lands in Mumbai were allotted at nominal rates to industrialists of earlier generations to establish factories. Their successors have been selling these lands, which were acquired at cheap rates from the state for the definite purpose of industrial development, at prevailing exorbitant market rates and pocketing the profits themselves. The factories became sick for a variety of reasons, including a failure to modernise, embezzlement and the diversion of funds after the workforce was bled through a prolonged and forced strike that was followed by lock-out.
* The issue of excise duty refunds is another instance of the executive aiding unjust corporate enrichment while the judiciary looks on. Manufacturers siphon off around Rs. 10,000 crores a year by withholding refunds of excise duties from consumers. The position of the judiciary is that consumers are not directly traceable. A consumers' welfare fund ought to be established with the excise refunds, which can be utilised for public welfare. After pocketing such hefty refunds quietly, the corporate sector protests about the high rate of duties, and demands more tax reductions or, better still, a tax holiday. This sector is never content with the tax concessions that the Government regularly confers on them.
* Neither the executive nor the judiciary has been stirred into action on the grave issue of the ill-gotten wealth of mega-rich Indians lying in the vaults of banks in Switzerland.
Lately, the judiciary has been busy granting non-bailable warrants for the arrest of various classes of VIP swindlers. In the process, a basic premise of law has been forgotten, that 'bail is the rule and jail is the exception'. Authorising the arrests of VIP hucksters is good for public consumption.
THE right to life is a fundamental right but it is rendered meaningless without concomitant rights to education, to work, to shelter and to health care. These rights find a mention in the directive principles of the Constitution. The legislature, the executive or the judiciary has not been activist with regard to these rights, which could make a real difference to the fundamental right to life. The judiciary can play a positive activist role by directing the executive to abide by these provisions of the directive principles, and make the fundamental right to life more meaningful. The judiciary can move more effectively against the criminal underworld, which in effect is the illegal arm of the ruling bloc and which in recent times has become the dominant element in the arena of politics, big business and culture as well. The judiciary is unable to play such an activist role precisely because it is also a part of the ruling bloc.
Italy's recent experience shows how an activist judiciary, helped by mass activism, can rejuvenate a degenerating socio-politico-economic order. With its ecclesiastical order and Latin culture, Italy is a lot like India - "a paradox of great civilisational depth combined with endemic national fragmentation." The work of the Milan judges against the mafia was followed up by the people of Italy, who brought down the entire edifice of the Italian ruling bloc and in the process exposed how the ruling bloc had come to be shaped and entrenched.
Economic and cultural impoverishment prevent the masses from turning activist. They lack the ability to build independent class organisations and nurture them in the face of legal, extra-legal and illegal tactics by the ruling bloc and also to keep such organisations free from the pervasive patronage and influence of imperialist sponsors. The endeavour should be to build activist mass organisations and help them grow and spread across the length and breadth of the country. Positive judicial activism is possible only when the judiciary can disengage itself from the ruling bloc and position itself on the side of the common people. This process will help strengthen the struggle of the people for a just and equitable socio-economic-political order, for the greatest good of the largest number.
Justice B.G. Kolse Patil is a former Judge of the Bombay High Court.