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The Judiciary and
Governance in India
Looking at the evolution of judicial review, independence and activism in India, one can safely infer that the Supreme Court is extraordinarily powerful today. It has limited Parliament’s power to amend the Constitution and has routinely made law even though the judges have been ruling, in various judgements over the years that their duty is only to interpret the law and not to enact legislation, which, according to them, is the sole responsibility and prerogative of Parliament. The Supreme Court, as the custodian and protector of citizens’ fundamental rights, has made innumerable public policy pronouncements and held executive bodies/agencies accountable for their acts of omission and commission. Indeed, in some cases, the apex court and the high courts have taken over the supervision of the executive agencies. Clearly, though most of the other institutions of the judiciary, especially the subordinate courts, are suffering due to inefficiency, corruption and poor enforcement, the Supreme Court has cast itself as the ultimate custodian of the rule of law and the highest institution of accountability. Needless to mention, if the judiciary has been increasingly issuing directives to the executive on matters of policy formulation and implementation, it is only because of the executive’s failure to deliver the goods. Not surprisingly, instances are cited of judicial intervention in matters entirely within the domain of the executive, including important policy decisions. Surely, if the judicial dictate is only to compel the executive to perform its legitimate function, without taking over the task itself, it cannot be faulted because the power to issue a mandamus is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line. The judiciary has been criticised for overstepping its limits and encroaching upon the domain of the executive (as also the legislature). Courts have intervened to question a car racing down in a city’s main thoroughfare, allotment of a particular bungalow to a judge, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences and so on, all under the threat of use of the power of contempt to enforce compliance of its directives. The moot question is whether this intervention is a boon or bane. Jurists, constitutional experts and commentators have given varied interpretations for and against judicial activism. Some fear that by making inroads into the executive and legislature domain without restraint, judicial activism has upset the fine and delicate constitutional system of checks and balances. Others, however, appreciate the manner in which the judiciary seeks to redefine its role in a corruption-ridden system. Worthy of mention in this context is the role played by public interest litigation (PIL). It is justifiably hailed as a progressive mechanism to serve the underprivileged. At the same time, it is also viewed as a tool for obstruction, delay and harassment. More important, PIL is also abused by some people for settling personal scores. Consequently, the Supreme Court has aptly stressed the need for the judges to tread with caution while admitting a PIL. Madhav Godbole’s The Judiciary and Governance in India is a valuable volume on the state of affairs in the judiciary and what needs to be done to rejuvenate this important pillar of the democracy in tune with the avowed goals and aspirations of the founding fathers of the Constitution. Godbole, who sought premature retirement from the IAS when he was the Union Home Secretary in 1993, himself had a bitter experience while undertaking a sample survey on the efficacy and impact of PILs. He bemoans the fact that despite reminders, the response to his questionnaires on PILs — decided, pending and rejected by courts — from NGOs and other organisations actively involved in the PIL work was "very poor" (p. 161). He makes a forceful plea for "strict, clear and uniform guidelines" by the Supreme Court for admission of PILs. This is needed to reduce their scope and the judges’ discretionary powers on admitting PILs. He has also suggested that the criteria for listing of cases of hearing should be clearly spelt out and must be in public domain. Significantly, the book examines some case studies and presents the outcome of 16 PILs — 13 of which were filed by the respondents to the author’s survey, and three others on the basis of published data regarding their outcome. The case studies dealt with such diversified issues as police reforms, criminalisation of politics (the Hawala case), undertrial prisoners, the condition of sewerage workers, treatment of poor patients in charitable hospitals, safety of Mumbai’s suburban train commuters, illegal mining in Mussoorie-Dehradun belt, solid waste management in cities, provision of facilities for the physically challenged, use of parks and other public places for cremation, inter-country child adoption, abolition of manual scavenging and emancipation of bonded labour. The author bemoaned the poor outcome of the survey which was not only "far from encouraging" but also raised "serious and troubling questions on judicial activism". In the case of PILs admitted, the author wants strict monitoring of the implementation of the decisions by the courts themselves in close cooperation with amicus curie and civil society. Interestingly, Godbole devoted a full chapter to the relations between the legislature, the executive and the judiciary (pp. 218-330). Drawing leaves from his long experience, he makes a strong case for the President to seek the Supreme Court’s advisory opinion on the separation of powers of the three crucial organs of the state under Article 143 of the Constitution. This is vitally essential because, according to him, there is no "meeting ground" between them today and the gap in understanding and appreciating each other’s position is also widening day by day. He says that the judiciary is becoming "not just the central pillar but the only pillar of our democracy". Commissions of Inquiry, Judicial reforms and Counter-balancing independence and accountability have been examined in detail with vivid examples and references. Godbole was an upright administrator and so his opinion is widely respected, commanding a great deal of credibility. The bibliography in two sections — of books and reports; and of scholarly articles — is illuminating and a storehouse of information for all those studying political science, law and journalism.
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Bacon