A democratic demand

Print edition : February 14, 2003

At the Madras High Court. India's constitutional democracy is in judicial custody. The courts must live up to their judicial trust. - VINO JOHN

Public interest justice is in need of a clear code, research and development support, in order that the instrumentality may be perfected and canalised properly.

A JUDGE is a leader, whether he wants to be one or not. He cannot escape responsibility in his jurisdiction for setting the level of the administration of justice. Therefore, the personality of the Judge matters, his sensitivity is decisive and his `unconscious' plays a decisive role in the exercise of judge power, particularly where it closely touches contemporary economic and social problems.

Justice Benjamin N. Cardozo, in The Nature of the Judicial Process has emphatically established the supreme importance of the Judge, his philosophy and his sub-conscious, his adherence to precedents, his character and impartiality. Here are Cardozo's felicitous phrases: "I have spoken of the forces of which Judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or Judge."

The law, substantive and procedural, never stands still even as life, societal life, is ever in locomotion. India's tryst with destiny inaugurated a new dawn, with vibrant values wiping out colonial denial of human rights for the masses. Imperial injustice became obsolete with Indian Independence and swaraj justice became the birth-right of the least, the lost and the lowly humans of Bharat. This transformation had to be reflected in the Justice Process. To obliterate procedural anfractuosities, to broaden the idea of locus standi, to enable the penurious many to exercise their right of access to judicial justice, to abolish expensive nuances and pachydermic chaos of interpretation so popular in British Indian lawyering practices and to establish free legal aid and public interest litigation (PIL) - these were forensic urgencies and jural necessities if the democracy of judicial remedies were to reach the indigent, illiterate and alienated Indians who would otherwise find the complicated court system `untouchable' and even `unapproachable'. This macro-challenge demanded radical, humanist changes in the exotic pre-Independence Bench-Bar theory and praxis which constituted their professional staple diet. The precedent-oriented, elitist system could not but resist departure from the status quo. The constitutional revolution, which was the vision of the Founding Fathers, was entrusted to the judiciary. The judiciary was given vast powers to enforce, through `writ power', the socio-economic liberation implicit in the Fundamental Rights and the other avant garde provisions of the great egalitarian instrument enacted as the suprema lex with effect from January 26, 1950. But the `robed brethren' did not respond to the sudden summons for large change, having been cultured in Westminster jurisprudence and law of Victorian vintage. However, the call of the Preamble to the Constitution, with the militant resolve to secure social justice in its broader dimensions to every Indian, could not be denied or defied for too long, since the antyajas and neglected gender claimed the Constitution as their title deed. These pressures from the proletariat, opposed though by the proprietariat, eventually found response and midwifed what has now become familiar forensic thought in the shape of judicial activism, social action, PIL and egalitarian jurisprudence. To transform the Supreme Court of India into the Supreme Court for Indians was the challenge.

The class factor affects Judges, as it does others. Prof. J.A.G. Griffith exposes thus the myth of neutrality of British Judges: "Judges are the product of a class and have the characteristics of that class. Typically coming from middle class professional families, independent schools, Oxford or Cambridge, they spend 20 to 25 years in successful practice at the Bar, mostly in London, earning very considerable incomes by the time they reach their forties. This is not the stuff of which reformers are made, still less radicals." (Politics of the Judiciary, Fontana Press, London, 1977).

Once we accept the proposition that in a democratic society large sections of the people look to the court for social justice, the selection of Judges assumes a crucial role. A certain functional transparency, prejudice-proof mentality and identity with Indian humanity becomes a sine qua non of the judiciary as the fiduciary of the people.

The Indian Constitution is not a neutral document but has a definite slant towards social justice and the weaker sections and, therefore, Judges have to share the values of the suprema lex. Then alone will class actions, test cases, representative litigation and social action proceedings meet with expected results. Indian courts are on trial and judicial performance is under scrutiny. A people-oriented perspective, a dynamic vision and instrumental obligation with a passion to see that the state secures, through the operation of the legal system, social justice on a basis of equal opportunity is the desideratum. It follows that the Constitution fulfils itself in its preambular pledges only when the right type of Judge with activism and imagination, capacity for affirmative action and courage to resist proprietariat pressure sits on the Bench and commits himself to a constituency which embraces the entire Indian people. While this writer sat on the Bench he had this mission and tried a transformation of the system of law of British raj vintage into one of Indian swaraj mintage. The task of transformation is still half-way through because Judges differ and even oppose PIL. The International Commission of Jurists (ICJ), in its Delhi Declaration, emphasised thus what is close to constitutional justice in India: "The rule of law is a dynamic concept, for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised."

The right to development is itself a human right to secure the dignity of the individual, to ensure environmental preservation, to guarantee that governance is not arbitrary and to make the rule of law, from an individual and community angle, a real reflection of the parameters of the Constitution. PIL wins if there is judicial statesmanship. The court has not usurped executive power or launched upon the law-making power. All that PIL does is to empower the court to inquire whether a violation of fundamental or other rights has taken place to the detriment of the citizen or the community. Where it does happen, the court does and must interdict the violation, declare the correct legal policy and provide, by appropriate scheme or otherwise, that people's rights become operational.

In M.C. Mehta v. Union of India, the court explained how, despite the enactment of the Environment (Protection) Act, 1986, there had been a considerable decline in the quality of the environment. The court noted that despite several PILs "the required attention does not appear to have been paid by the authorities concerned to take the steps necessary for the discharge of duty imposed on the State... Any further delay in the performance of duty by the Central government cannot, therefore, be permitted. Suitable directions by the court to require performance of its duty by the Central government are mandated by the law and have, therefore, now to be given. The court, however, required the Central government to indicate what steps it had taken thus far and also place before it the national policy, if any, drawn up for the protection of the environment.

In the matter relating to forests, in T.N. Godavarman Tirumulpad v. Union of India, the court constituted an expert committee to examine the issue of depletion of forest cover, and to consider questions such as who could be permitted to use forest produce and in what circumstances this was permissible. The court imposed restrictions on the felling of trees and the sale of timber. In an exercise of `continuing mandamus' it closely monitored the implementation of its orders.

A writ petition in 1985 filed by M.C. Mehta related to proper management and control of vehicular traffic in Delhi. It was suddenly activated on November 20, 1997 by the Supreme Court after a large number of children died when a school bus plunged into the river Yamuna. The court justified its directions to the government to prescribe speed limits and mandate the installation of speed control devices on the ground of executive inaction when it found that although the provisions of the Motor Vehicles Act, 1988 were adequate, they had not been exercised.1

The law and policy divide (of Montesquian genome) may sometimes have to give way to the defence of fundamental rights. In Vishaka v. State of Rajasthan, an instance of a PIL where protection against sexual harassment of women at the workplace was the poignant issue, the court stepped in, since the legislature had not implemented international instruments consistent with national law, which were read by the court into Indian jurisprudence.

The court declared that till the legislature enacted a law consistent with the Convention on the Elimination of All Forms of Discrimination against Women, which India was obliged to do as a signatory, the guidelines set out by the court in Vishaka, adopting the Convention, would be enforceable.2

The court, however, hesitated where it did not have adequate capacity to handle the practical situation. In the Tehri Bandh Virodhi Sangarsh Samiti Case the court stated that it did not possess the requisite expertise to render any final opinion on the rival contentions of the experts. In the court's opinion, a court can only investigate and adjudicate the question as to whether the government was conscious of the inherent danger as pointed out by the petitioners and applied its mind to the safety of the dam. Despite such observations, the court has not adopted a uniform and consistent approach in dealing with its emerging role as a policy-maker. While in some cases the court has expressed its reluctance to step into the legislative field, in others it has laid down detailed guidelines and explicitly formulated policy.

In the case of adoption of children by foreign nationals and custodial torture, similar guidelines were laid down. In a case dealing with vehicular pollution too, the court stipulated the time-frame for enforcement of international pollution norms. In the hawala case, the court concerned itself with establishing a mechanism for the supervision of the Central Bureau of Investigation (CBI) and the grant of statutory status to the office of the Central Vigilance Commissioner.3

There has been criticism from the executive and the legislature of judicial usurpation of power. But the instrument of PIL offers a versatile process of expressing citizens' concern in cases that are violative of justice. Then the court enters the thicket and exercises its constitutional authority to keep the democratic process on track. However, the credibility of the PIL process is now adversely affected by the criticism that the judiciary is overstepping its jurisdiction and that it is unable to supervise the effective implementation of its orders. It has also been increasingly felt that the institution of PIL is being misused by people agitating private grievances in the garb of public interest and seeking publicity and private grudge rather than espousing public causes and defending handicapped humans.

The judiciary has itself recognised and articulated these concerns periodically. Many of the issues that have come up before courts in the form of PILs are highly technical, involving complex questions of policy-making, financial support for development projects, and industrial development. In addition to the perception of the judiciary as an institution that does not enjoy a democratic mandate, this criticism also focusses on the lack of expertise in the judiciary to deal with such complex and technical policy issues.

Judges have been careful not to be lured into adjudication of private grievances dressed in PIL habiliment. In a recent case (Malik brothers v. Narendra 1999 - (v) SCALE 212) the court observed: "The directions and commands issued by the courts of law in a public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected it would be the bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated." 4 Traditional Judges, even those as eminent as Chief Justice M. Hidayathullah, have been critical of departure from adversarial blinkers.

Of course, politicians have been annoyed with justices making their dubious doings challengeable in court.

Despite the problems of judicial predictability and the feeling that the constitutional balance may be affected, it has to be acknowledged that the far-reaching judgments in cases such as those relating to the Bhagalpur blindings, the Bihar undertrials, and the mentally ill in jail have provided desperately needed relief and exposed executive failings. PIL has also helped in the development of legal principles such as the `polluter pays' principle, the `precautionary' principle, and the principle of award of compensation for constitutional wrongs.

Bearing in mind the power and importance of PIL in making the Constitution a living reality for a large number of citizens, it is important to view these criticisms as indicators of the safeguards and checks that the court must now build into its PIL jurisprudence. To allow public perception against PIL to fester would erode its credibility and that of the judiciary itself.

In the words of former Chief Justice J.S. Verma: "The need is to prevent misuse of PIL and not to criticise the process. And this is what the courts will have to do so that misuse of PIL is prevented and proper use of it has not to be blunted. Every innovation takes time to get into proper shape. Any attempt to curb it would be to throw the baby with the bath water. It is primarily for the courts who devised this procedure to practise self-restraint and to also devise proper checks and balances to ensure that even persons who want to misuse it are not able to do so." 5

When the history of the judiciary in India comes to be written, PIL will be glorified as the noblest ally of the little Indian in distress and despair, of the weaker community oppressed by authoritarianism and corrupt power and making human law and human justice find a sacred sanctuary in the hallowed halls of the higher judiciary.

The why, when and how far, of public interest justice, now left to the mood and temper and the ad hoc composition of Benches, must be replaced by a clear code, if this jurisdiction is not to become a bull in a china shop. Affirmative action and judicial activism must also be canalised within clearly built embankments so that the surging stream may not breach well-established dykes and result in judicial directives whose consequences may be beyond repair if issued without full study.

Such dangers are real especially since most Judges are new to this expertise. The judiciary does not have the equipment for social research or laboratory studies when confronted with large-scale lawlessness in the fields of environmental pollution and industrial production. Violation by noxious discharges, non-compliance with welfare measures and mafia defiance of human rights of the humbler, weaker sector of society, demand careful handling if the remedy is not to aggravate the malady. Some Judges create commissions, appoint amicus curiae, call for reports and information, hear arguments of some affected parties and decide questions on the basis of imperfect data. Others bypass even these exercises.

Research and development in the field of public interest jurisprudence is a necessity so that the instrumentality may be perfected in the cause of public justice. Such research has to be undertaken by highly specialised law institutes. Likewise, Judges must undergo refresher courses so that their vision may be sharpened, their knowledge widened and their pragmatic sense sensitised. Here, the need for specialised courses for justices in public interest law comes in. Perhaps the Bar too will benefit from training courses.

Now the Third World is awakening to the right to social justice, and the people, in their aggrieved numbers, are demanding humanised mutations in the otherwise elitist justice process. The administration of `establishment' injustice cannot be sold as administration of people's justice once the masses become conscious of their constitutional rights.

Prof. Upendra Baxi put it sharply thus: "For much too long the law persons - Judges, lawyers and jurists - verywhere in the world have successfully managed to convince the people of the truth of their lies concerning the nature of the judicial process."

Now the truth - the right to justice - must out. That court best serves the cause of justice which recognises that the rule of law which grew up in a fossil generation may, in the fullness of experience, be found to serve a later generation badly, and which therefore discards the old rule and adopts a more dynamic rule of law which represents what should be effective, having regard to current realities. The country's constitutional democracy is in judicial custody. The court must live up to its custodial trust.

Justice V. R. Krishna Iyer is a former Judge of the Supreme Court of India.

Supreme but not Infallible: Essay in Honour of the Supreme Court of India

2. ibid. page 178. 3. ibid. page 178-179. 4. ibid. page 183. 5. ibid. page 183-184.

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