As many judicial decisions of late seem to have adversely affected governance the debate about the need for judicial restraint has once again come to the fore. The Attorney General, Mr. KK Venugopal, pointed out recently that the cancellation of 2G spectrum licences on the Supreme Court's order, for instance, had wiped out huge amounts of foreign investment; and so also its order on the liquor vends on highways had caused huge financial loss to the exchequer and immense hardships to lots of people who had lost their livelihood.
Venugopal, however, softened the remark by saying that not everything is negative ‘but the Court should exercise restraint while dealing with public interest litigation (PIL) with the country facing a lot of problems. Like caste, for instance (this was a veiled reference to the top court's order diluting certain provisions of SC/ST Act which had led to street protests leading to several deaths).'
He made these remarks while arguing before a bench headed by Mr. Justice Madan B Lokur that was hearing a PIL on the condition of jail inmates. He said that ‘day in, day out, I read newspapers and your observations,' and that was why he was constrained to make these remarks. Mr. Justice Lokur — who has been pulling up government agencies in various cases for lapses in dealing with pollution, child rights and women's rights — explained that the court has been trying its best to solve some of these problems.
'Some of these problems we are trying to solve... Like prison conditions, child rights, women rights... Through orders of this court you (government) have got thousands of crores of rupees in cases like mining, construction work... What more do we do? Rest assured that Article 21 (right to life and liberty) is here to stay and we will uphold it,' he assured Mr. Venugopal.
Some time earlier another Supreme Court Judge, Mr. Justice Gogoi, on another occasion, had suggested that ‘noisy judges and independent journalists are democracy’s first line of defence and a revolution, not mere reform, is needed to keep the institution of the judiciary responsive to the changes in society.’
He also went on to say that the judiciary was the ‘last bastion of hope’ and it needs to be ‘uncontaminated’, more ‘pro-active’ and on the ‘front foot’ to preserve its moral and institutional leverage. ‘ Reports of the death of democracy are greatly exaggerated. But the least bad system of government ever devised, is in trouble. It needs defenders,’ he said quoting a British magazine.
He said he agreed with this assessment ‘but will only suggest a slight modification in today’s context — not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.’ Some of the judges have been a tad noisy all right but the tribe of independent journalists are becoming an endangered species.
Though his equating the judiciary with the Fourth Estate is a bit far-fetched the point could be well taken. But too much proximity to the media is also not a desirable trend, because by its very nature the media, especially the visual media and that too with breaking the news all the time, tends to exaggerate, whereas the judiciary is expected to exercise critical judgment and take a detached, long-term view.
Mr. Justice Gogoi was among the four Supreme Court colleagues who held an unprecedented press conference making public a letter they had written to Chief Justice of India Dipak Misra raising questions on various issues pertaining to the functioning of the court, particularly allocation of cases and the roaster system. ‘It’s a discharge of debt to the nation which we had done,’ he had said at that time.
Laying out his vision of the judiciary, Mr. Justice Gogoi said that the judiciary today ‘is not a poor workman who blames his tools but it is a workman with no tools. In the light of what a French author had once said, ‘Everything has been said already, but as no one listens, we must begin again.’ He also pointed out the divide between the two Indias — one that ‘believes it is the new order’ and another that ‘lives below a ridiculously drawn poverty line’ and called for a ‘constitutional moment’ of the judiciary which had been long overdue.
Citing a string of judgments, he had underlined the primacy of enduring Constitutional morality over ‘fickle’ social morality. Significantly, this notion of ‘Constitutional morality’ was invoked recently in the Delhi Government vs the L-G case and in the Supreme Court’s hearing of the case related to Section 377.
The Supreme Court has also been evolving, he pointed out, and if the 1970-1980 decade expounded the Basic Structure Doctrine (that certain aspects of the Constitution were inviolable), in the 1980s, it expanded the scope of Article 21 (protection of life and personal liberty), and by 1990s, it had became somewhat of a ‘Good Governance Court’ interpreting Constitutional provisions to address the inadequacies because of executive and legislative inactivity.
‘I will certainly say that the judiciary must certainly be more proactive, more on the front foot.’ He declared. ‘This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality (separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws.’
This effort at dynamism also needs to be tempered with restraint which was not evident sometimes. For instance the National Green Tribunal’s ruling on Jantar Mantar has been overruled by the High Court and the place has again been the venue of protests and demonstrations after many of the agitating groups found the alternate site, the Ram Lila grounds, unsuitable logistically and also due to many other factors. In the recent ruling on the Board of Control for Cricket in India also the court has been in contravention of the stand of Mr. Justice S.M. Lodha, a former Supreme Court Chief Justice. Such dissensions do not behove well for the fraternity.
The judiciary also faces many other problems, like the backlog of cases, especially in the lower courts, and the tardy and slow process of collecting evidence. There is also the enormous number of vacancies in these courts that had not been addressed to. This also seems to be disproportionate to the cases that are being taken up by the apex court. For example, the Aadhar case hearing has been one of the most protracted and is only second to the Keshavanada Bharati case that had set down major precedents and one of the landmark judgments.
The suggestion of one of the sitting judges that the retirement age of judges should be raised to 70 years also touches upon one factor that has not been addressed. Compared to the fees that many advocates charge, the salaries of judges are dismal and that could be one reason why many of them take up post-retirement assignments in the many commissions and as consultants. The BCCI itself had an array of retired judges holding positions right from the time of Mr. Justice Mohan. So there seems to be need for revising their salaries to have some parity with those who hold similar responsible positions and whose decisions have far-reaching impact.