The Union law minister Kiren Rijiju has made public statements against the judiciary taking up issues which were traditionally outside its scope. Stating that the judiciary is encroaching upon the role reserved for the executive, the minister stated, “If the judiciary starts framing the rules, if they start deciding where the road is to be built, if the judiciary gets into the service rules, what is the government for?”
This is a pertinent question and a very valid one. There is a trend of public interest litigations (PILs) which seek the Supreme Court to frame rules and guidelines, which are beyond the scope of a judge under traditional common law systems. Constitutional courts in India are regularly called upon to initiate investigations and inquiries, monitor the same and make sure that the process is followed.
While the law minister has asked a very pertinent question, he has addressed it incorrectly. The question ought to be addressed to the litigants who approach the courts for issues which should be taken up by the government. While judges in India often interfere in issues which they would not have done three or four decades ago, the reason that they are called upon to do so is because of the dysfunctional nature of the government.
A large part of litigation relating to the government in India is not to decide a dispute with the government, but to make the government act in accordance with the law. Cases are often filed because there is no effective interface with the government. Government officers regularly fail to observe the rules and processes required of them.
The law minister has pointed out the issues of building roads, for instance. In other democracies, local bodies provide an opportunity for effective consultation for all stakeholders regarding the routes of roads. There are public hearings which provide an opportunity for dialogue. In India, any attempt by an ordinary citizen to seek a discussion regarding the route of a road would be met with studied indifference, if not outright derision, by the executive.
The most effective part of the court process is the opportunity to be heard. The judge is bound to hear the case put forth by the lawyer on behalf of their client, or of the petitioner in person, as the case may be. This is an opportunity that the executive does not afford to the citizen. On occasions where officers or ministers meet members of the public, there is no effective consultation with citizens as stakeholders. The usual modus is to accept a representation and a promise to consider the representation. This is not how democracies function.
Article 226 of the Indian constitution gives the high courts in the country wide powers to issue writs for the protection of fundamental rights “and any other purpose”. The constitution gives the judiciary wide powers to act, to address governmental inaction as well as actions that are questionable being illegal, arbitrary or mala fide. Article 32 of the constitution guarantees the right to approach the Supreme Court for violation of fundamental rights. If the government was functioning the way it is supposed to be, the need to approach the courts for such issues would be rare. Very few people want to bear the costs and inconveniences associated with approaching the courts. They approach the courts because they have to. If their grievances were to be addressed by the local government, they would have no need to do so.
Government lethargy forces overreach
The kind of issues on which the Supreme Court, for instance, has had to interfere in the recent past is evidence of the governmental lethargy which forces the courts to overreach. The terms of members of the National Company Law Tribunal had to be decided by the Supreme Court urgently, not simply as a matter of law, but because the lack of sufficient numbers threatened to derail the functioning of this tribunal. The National Company Law Tribunal Bar Association had to raise this issue to ensure that the Tribunal kept functioning.
Similar orders had to be recently passed regarding the Central Administrative Tribunal and regarding the National Green Tribunal as well. These tribunals are staffed by retired judges of the Supreme Court and high courts and deal with cases that are crucial to the functioning of the country. If such callousness is present in the case of these high-profile appointments, one can imagine the plight of an ordinary citizen.
Rijiju has blamed the judiciary for entering into issues of service rules. Where the government cannot be bothered to even properly staff statutory tribunals, the attitude towards regular service issues can be well imagined. A day in the courts reveals cases which simply require the government to fulfil its functions, but the courts are approached because the government remains opaque and inaccessible.
The judiciary may have its flaws but it remains one of the only truly democratic fora in the country where the demand for justice can be made secure in the knowledge that the full protection of laws will be afforded to the person seeking such justice.
The law minister has not mentioned the orders of the Supreme Court regarding the prosecution of Teesta Setalvad, R.B. Sreekumar, Sanjiv Bhatt, and activist Himanshu Kumar, which are seen by many as an example of judicial overreach. These instances are more disturbing as they run the danger of intimidating citizens from approaching the courts.
Such stray cases apart, the judiciary remains a bulwark against governmental excesses and injustices. The executive would be well advised to look at its own shortcomings before attacking the judiciary.
Sarim Naved is a Delhi-based lawyer.