The third tendency is an encroachment on people's
livelihoods and rights of domicile in the name of
improving the environment. The classic case of this
was the shutting down of factories in Delhi for the
sake of reducing pollution, and the throwing out of
work of thousands of workers. More recently, pronouncements
from the Supreme Court bench that ''Delhi should not
be allowed to go the way of Mumbai'', meaning that
restrictions must be placed on the people's right
to domicile in the metropolis in order to avoid undue
strains on civic amenities, suggest a judicial endorsement
of an attack on the livelihood of the metropolitan
poor and on a basic right which they have enjoyed
for long. To be sure, strains on civic amenities should
be avoided, and polluting industries should be shut
down. But these are issues whose settlement requires
proper redressal for those adversely affected. The
modus operandi of such settlement moreover is through
discussion and the emergence of a social consensus.
To attempt to ''solve'' them through judicial diktats
is not just ham-handed; it is profoundly anti-people
and betrays typical upper class prejudice.
The fourth tendency is the encroachment on the lives
of the people in the name of preventing illegal immigration.
The worst example of this is the recent striking down
of the IMDT Act. Illegal migration is a bogey raised
by the Right. While the perniciousness of this bogey
comes home to us when it is used as a means to harass
Indians in metropolitan countries (the most obnoxious
instance of such harassment being the so-called ''virginity
tests'' that used to be carried out in Britain), the
use of the same bogey at home as a means of harassing
the poor, especially those belonging to the minority
community, in the name of preventing Bangladeshi immigration,
scarcely arouses anger. And the judiciary, in yielding
to this bogey, echoes the prejudices of the Right
which in turn reflect upper class prejudices.
The fifth tendency is a general endorsement by the
judiciary of the neo-liberal outlook. This is manifest
in innumerable judgements, notably on the BALCO privatization
issue, the Orissa Bauxite case, and the Rajasthan
mining issue. It is also manifest in the rather sympathetic
treatment meted out by the Supreme Court to Union
Carbide on the Bhopal Gas Tragedy issue, which was
very much in keeping with the neo-liberal spirit of
bending over backwards to accommodate multinational
corporations.
The foregoing discussion is far from exhaustive, both
in the listing of tendencies and in the listing of
cases. I have focused here on only a few illustrative
items. A more detailed, though again by no means exhaustive,
list of cases where the judiciary has given important
verdicts against the common people in recent years
can be found in the Appendix to this paper.
Three caveats are in order here. First, to say that
the judiciary has shown an anti-people attitude in
important verdicts in recent years, does not mean
that its record is uniformly dismal. There have no
doubt been other instances where it has shown concern
for the poor, a notable example being the Supreme
Court's directive for the distribution of foodgrains
to the BPL population. Much no doubt depends upon
the individual judges. Such concern for the poor on
the part of the judiciary, however, has been on the
whole the exception rather than the rule.
The second caveat is that notwithstanding its open
espousal of current bourgeois attitudes, or of the
social philosophy of what someone has called ''muscular
liberalism'', in cases relating to the denial of basic
rights to individuals, the judiciary has been more
sympathetic. But that is entirely in keeping with
the bourgeois outlook. An attenuation of the rights
of the people as a whole can go very well with, indeed
does go very well with, a scrupulousness in safeguarding
of the rights of individuals qua individuals. What
is more, this scrupulousness also tends to obscure
the larger picture of the judiciary's playing the
leading role in attenuating the democratic rights
of the people as a whole.
The third caveat is that this role of the judiciary
should not be attributed to any malevolence on its
part. It is as much subject to the neo-liberal barrage
unleashed by the media, and by imperialist agencies
generally, as anybody else, and it imbibes these ideas
and prejudices. But precisely because it is in the
position of being an arbiter on people's lives, without
facing the constraints that other organs of the State
face, its attitudes and prejudices have a far more
profound impact in restricting people's democratic
space than those of any other organs of the State.
In short its acquiring a leading role in essaying
a ''thermidor'' in the Indian context has to be located
within specific historical circumstances rather than
in any individual or collective malevolence on the
part of the judicial luminaries. And an inevitable
fall-out of these circumstances is the judiciary's
thrusting itself forward as superior to the other
two organs of the State. Let us turn to this aspect
now.
III
The
judiciary's appropriating a superior role compared
to the other organs of the State is a process that
has been going on for some time. This in itself is
a dangerous and anti-democratic process since unlike
the legislature the judiciary is not elected through
universal adult franchise; its acquisition of a superior
role vis-à-vis the legislature in matters that
do not strictly pertain to the interpretation of law
is therefore an attenuation of democracy. No doubt
the legislative bodies are riddled with rampant corruption
and are even peopled by criminal elements. But to
see judicial activism as a solution to this, and correspondingly
to see the judiciary as a custodian of political morality,
is, even when such activism is beneficial in the short-run
(which it is not), tantamount to preferring a benevolent
dictatorship to a democratic form of government. It
is to the credit of Shri Somnath Chatterji the new
Speaker of the Lok Sabha that he has raised this issue
of the judiciary over-riding the privileges of the
legislature.
But matters have gone much further. No less a person
than the Chief Justice of the Supreme Court has explicitly
announced that the role of the judiciary is to oversee
the functioning of the other organs so that they do
not transgress their proper domains. This openly elevates
the judiciary to a higher position than the other
organs of the State. The question that Justice Lahoti
needs to answer is this: if the judiciary is the organ
to prevent transgression by the other organs then
who is to prevent transgressions by the judiciary?
The unquestioning acceptance of judicial verdicts,
which is a typical feature of a modern democratic
society, stems from a perception of the judiciary
as an interpreter of the existing laws, not as a custodian
of the nation's morality. The enforcement of ''morality''
is a task that in a democracy rests only upon the
people, not upon a ''select few'' who, not being elected,
are not answerable to anybody. To assert otherwise
is to implicitly endorse the equivalent of a theocratic
system, such as prevails in Iran where ''the supreme
leader'' is the anointed custodian of morality, or
such as the RSS conception of a Hindu Rashtra entails,
in the form of a Guru Sabha where sants and such like
who are not answerable to the people become arbiters
of morality. In other words instead of seeing the
people as the ultimate source of power, Justice Lahoti's
conception sees a ''chosen few'' as the ultimate source
of power. Of course Justice Lahoti has merely expressed
an opinion and one must not exaggerate the significance
of that remark. At the same time however it should
be clear that this particular opinion, no matter how
innocuous, contains within itself the seeds of a coup
d' etat against our democratic constitution.
Not content with proclaiming the superiority of the
judiciary to other organs of the State, members of
the judiciary have even started echoing the typical
upper class contempt for the actual political process
of the country through a debunking of ''political Parties''.
Thus a three-judge bench consisting of Justice Y.K.sabharwal,
Justice C.K.Thakker and Justice R.V.Raveendran staed
on September 16, 2005 (see The Hindu, Sept.17) that
''Political parties were holding society to ransom''
by organizing bandhs. The remark was made in the context
of the BJP-Shiva Sena appeal against a Bombay High
Court verdict imposing a fine of Rs.20 lakhs on each
Party for jointly organizing a bandh in 2003. Now,
as already mentioned, whether bandhs should be organized
or not, and if so under what conditions, is not a
matter for the courts to decide: it is an established
right of the people and any tampering with it can
be done only with their consent (or at the very least
by the legislatures which are accountable to the people).
But in the present instance the Supreme Court not
only expressed itself against bandhs, it not only
criticized the BJP and the Shiva Sena which organized
the particular bandh it was considering; it launched
an attack on ''Political parties'' in general, thereby
contributing to the general cynicism with the political
process which threatens democracy and which is so
common among the upper classes, though not among the
ordinary people. (An index of this is the fact that
voting percentage among the former is exceedingly
low while that among the latter is much higher: the
New Delhi constituency dominated by the rich, for
instance, witnesses one of the lowest voter turn-outs
in the country). In short, the ''yuppie'' attitudes
and the ''yuppie'' outlook which cannot gain ascendancy
through the legislatures, are now managing to get
imposed through the judiciary, which, quite gratuitously
and irresponsibly, also debunks the legislatures.
IV
What
is even more ironic however is this: while the judiciary
cannot be taken to task for using such intemperate
and derogatory language against that organ of the
State which is elected by the people, language moreover
that has a potentially anti-democratic thrust, any
protest against the use of such language by the judiciary
would promptly invite ''contempt of court'' proceedings.
For the rule of law, there must be a final authority
whose interpretation of the law has to be binding
on all. ''Contempt of court'' is a means of making the
verdict of the courts binding on all. The legitimacy
of the ''contempt'' provision therefore derives from
the role of the judiciary as interpreters of the law.
But when the judiciary arrogates to itself the role
of making derogatory remarks about the other organs
of the State, or when the judiciary expounds its own
social philosophy, to make the ''contempt'' provision
applicable in these case too is sheer authoritarianism.
And yet this is what the courts have been doing. Comrade
Biman Basu at this moment is facing ''contempt'' proceedings
for having said what he thought of the Calcutta High
Court judge's order about holding demonstrations.
''Contempt'' proceedings in short are being used as
a means to ram bourgeois attitudes, and bourgeois-approved
measures against popular action, down the throats
of the people.
All this is not to say that our political life and
political institutions are free from ills. On the
contrary, as every one knows, they are afflicted by
rot. But this rot can be removed only through the
intervention of the people, no matter how delayed,
protracted and halting such intervention may be. To
believe that this rot should be set right by members
of the judiciary who can play the role of some latter
day ''knights on white chargers'' is to invite authoritarianism.
But the fact that this belief is being propagated
by the bourgeois media, and is shared by the judiciary
itself, is because it serves to curb the people's
democratic rights, which is a historical necessity
for the bourgeoisie in the present conjuncture for
reasons mentioned earlier. The judiciary must realize
that if it continues to be complicit in the project
of unleashing a bourgeois counter-revolution, then
sooner or later it too will have to face the wrath
of the people.
APPENDIX
LIST OF JUDGEMENTS AFFECTING THE PEOPLE'S LIVES AND
RIGHTS
