Courts are increasingly being asked to intrude into the elected executive’s domain


The Court of Appeal UK in the 1968 Blackburn case expanded the traditional notions of access to justice, holding that the courts could step in where the police failed to enforce the law. Quintin Hogg wrote a strong critique of this judgment, which he concluded by saying: “It is hoped that the courts will always remember the golden rule for judges in the matter of obiter dicta. Silence is always an option.”

Arundyuti Das Basu

Justice Denning, rejecting a motion for holding Hogg in contempt, eloquently summed up the position of judges thus: “All we would ask is that those who criticise us will remember that from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

Justice Salmon, concurring with him, said: “It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.” It is this touchstone on which the fairness – nay the legitimacy – of the comments made in recent times about the Supreme Court and some of the high courts need to be judged.

In their traditional mould, a court adjudicates disputes between parties – and in that context examines the causes brought before them. The constitutional courts opened their doors to causes brought before them – where there were instances of violation of constitutional rights of the underprivileged. This was extended to apathy in enforcing environmental law. The court took on the task of examining causes. The PIL was born!

With time, the growth of this kind of intervention by the court gave birth to organisations whose objective was to file PILs to champion public causes. As intervention of the courts increased, PILs increasingly became at times a vehicle for “eminent” members of civil society to clothe their point of view in a constitutional garb and seek its enforcement as enforcement of pseudo-constitutional rights. Undeterred by the consequences of monumental failures of court monitored investigations such as the Jain Hawala case and the 2G case, petitions continue to be filed seeking court monitored investigations into all and sundry.

Left leaning economic philosophies which have been abandoned in their country of origin, and whose protagonists have lost at the hustings, are attempted to be fed into the system through judicial edict. Whether it be privatisation or nuclear power generation, creation of new highways, new ports or new airports – the court is asked to step in and prevent the elected executive from implementing its policies.

2009-14 saw a dramatic rise in such PILs – as governance shrank, the remit of the courts’ power seemed to grow, for nature abhors a vacuum. This intrusive jurisdiction had, at some point, to be tempered. The need for a course correction was apparent to those who dispassionately examined the working of the institution. And that is what has happened.

Justice is not a cloistered virtue, and the judgments of the court must be open to public debate. Criticising the judges and condemning the institution by ascribing motives to the judges and accusing them of lack of intellectual integrity is quite another matter. The Jain Hawala case judgments and the 2G judgments have exposed the dangers of court monitored investigations, where reputations are destroyed and businesses laid waste, only to end in mass acquittals. The coal allocation judgment and the Goa mining judgment have generously contributed to bringing down the GDP. Yet any suggestion that the judges, who dealt with those cases, acted out of anything other than the highest of motives is preposterous.

This course correction by the court has unsurprisingly upset those who had gotten used to using the judicial system to dictate their philosophy to the elected executive. In their arrogance, they perceive any court which does not toe their line as being subservient to the executive. Judges are maligned, as a warning to those who follow.

A constitutional court is always making choices of what causes it takes on. That is the power of judicial review which is rooted in the court’s discretion. Former judges who have been a part of the system should be more sensitive to the difficulties of sitting judges in finding the right balance between competing interests and equities. Even if they choose to criticise judgments, condemning the institution for its choice of causes it seeks to entertain, and giving it negative grades suggesting a fall in values, is deeply disturbing.

The criticism of the court in not entertaining the petitions relating to migrants, to the extent it seeks to render moot the correctness of the judgment, is within the right of fair comment. To suggest that the court lacked the courage or human values to take on the matter when it was first presented, or worse, that they capitulated before the executive, is not only contemptuous but destructive of the edifice on which rests our fragile democracy.

Solicitor general Tushar Mehta, in a trenchant criticism of some who have been filing PILs, raised the issue of how the institution must address this situation caused by ceaseless irresponsible criticism. His words, like those of Hogg, may have been strong. But the issues raised by him require careful and serious consideration.

Our judges do a rather thankless job. And for them silence is the only option – they speak only through their judgments. Relentless attacks on the judiciary are designed to warn judges that those who do not conform will be condemned. If this tendency is not curbed, it would erode public faith in an institution that burns the midnight oil to serve the citizenry.

DISCLAIMER : Views expressed above are the author’s own.



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