A philosophy of judicial restraint statecraft DT. 18-12-07 THE HINDU
The observation by two judges on the limits of the judiciary’s power is a timely call to turn our back on judicial activism, bordering on political partisanship. Institutional balance and boundaries have to be intrinsically respected by all.
It was no surprise that within days of enunciation of the eminently reasonable A.K. Mathur-Markandey Katju doctrine of judicial reasonableness, Chief Justice K.G. Balakrishnan sought to reassert a maximalist view of what their Lordships can do or cannot do. The wise and sensible exhortation by the Mathur-Katju Bench was for the judiciary to rediscover “the self-imposed discipline of judicial restraint.” Perhaps it was intended to help dismount the judicial over reach tiger.
The only surprise was that it was the Chief Justice who deemed it advisable to suggest that the Mathur-Katju argument be spurned because Mr. Justice Balakrishnan himself has been suspected of abandoning the forward posts of public interest litigation. Yet no one is surprised because a very potent convergence over the years of institutional forces, intellectual impulses and politicised individuals has egged the higher judiciary to “behave like emperors”— to use the Mathur-Katju phrase — and this phalanx is not prepared to come down from the giddy heights of activism. Senior lawyers and other “civil society” voices have pitched in with dark hints of how unhealthy forces will run amok if they feel that the judiciary is unwilling to step in. In this perspective — essentially an upper caste/upper class prejudice — the higher judiciary is the only uncorrupted and incorruptible guardian of constitutional values and good governance.
The discord within at the very apex of the pyramid once again draws attention to the lack of jurisprudential coherence, an intellectual and doctrinal infirmity that puts all higher judges on the same Solomonic pedestal of wisdom and prudence. The only hint of gradation is in the numbers of judges behind a verdict: a three-judge Bench, say, is ipso facto deemed superior to a two-judge Bench, irrespective of the facts, arguments, explanations, judicial philosophy, clarity of prose, respect for precedents, constitutional history, etc. The device of a constitutional Bench too is no longer producing lasting jurisprudential benchmarks.
Given this institutional inability to produce jurisprudential coherence, it is only natural that the Mathur-Katju advice should have been seen as a call to close the PIL shop. There is a classic case of red herring. An independent, autonomous and vigorous judiciary is at the core of any democratic arrangement, and such a vigilant judiciary should always be available to the citizens against a callous administration. There is nothing in the Mathur-Katju judgment to suggest that the Supreme Court and the High Courts dilute the protection they provide to the citizen.
The reason why the Mathur-Katju observation has been greeted with so much disdain is that it seeks to remind everyone concerned of the creeping judicial waywardness. The point has been made by others; but this is the first time the reminder has come from two judges who have a reputation for independence and thoughtfulness. Not even the best defenders of judicial activism can be indifferent to recent controversies involving judicial personalities and pronouncements, bringing into disrepute the very institution.
The Mathur-Katju plea for judicial self-restraint is essentially a call for return to non-partisanship in the political arena. Given the far from perfect procedure for selection of judges for the higher judiciary, and given the near-total absence of any disciplinary mechanism against an errant judge, it is only natural and only a matter of time before the Bench starts departing from strict legal neutrality and personal disinterestedness. Involvement of judges with political parties after their retirement has distracted from the judiciary’s claim to political distance. Increasingly, the judges do not even want to wait till after retirement to indicate their political likes and dislikes.
Judicial protection
Take the case of the All-India Institute of Medical Sciences. Judicial protection was provided to a director, all in the name of protecting the AIIMS autonomy against presumed political interference. The institutional autonomy was interpreted as total independence for the director of a publicly-funded organisation against a Health Minister, unfamiliar with the pretensions and protocols of networking within the capital’s powerful elites. This “protection” became a licence for the director and his clique to join hands with political and ideological opponents of the Minister.
Because of the judicial protection, the AIIMS establishment felt encouraged to oppose a change in the reservation policy. This was pure and simple political partisanship. A section of the judiciary ended up protecting insubordination against the lawfully constituted constitutional authority, ultimately leading to an equally distasteful and drastic change by Parliament in the law governing the AIIMS.
At the core of the judicial involvement in the AIIMS was a larger itch: “Come to us — for protection.” And this is what the Mathur-Katju Bench sought to warn against: “Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the state to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.”
And “reaction” is already there. Only a few days before the Mathur-Katju observation, did the Lok Sabha have a long discussion on judicial over-activism, though the parliamentarians were reticent enough to call it a discussion on the “need for harmonious functioning of the three organs of state — legislature, judiciary and executive.” And if the leaders on the Bench and the Bar read a transcript of the debate, they would not miss the impatience and incomprehension with the ways and manners of the higher judiciary.
Perhaps those who man the portals of the higher judiciary have shrewdly calculated that the Indian polity will never recover from its present-day debilitating fragmentation, and will consequently never have the collective voice to challenge the judicial overreach. The Union Law Minister, who is otherwise highly respectful and appreciative of the Bench, told his colleagues during the debate: “I cannot criticise the judiciary. A Law Minister cannot ... but I can say with full responsibility that the supremacy of Parliament is not the same as it stood before Kesavananda Bharti’s case. The Ninth Schedule is in question nowadays. The other things are in question. Your resoluteness will be required. It is the firm voice of this House that is required…”
The Minister’s plea for parliamentary “resoluteness” is not a call for “confrontation” with the judiciary. It only gives expression to the creeping view that an imbalance has been allowed to come to define the governing mechanism in our complicated polity. A warning has been sounded.
In fact, the very fractured nature of the polity that gives the judiciary a larger institutional elbow room also sets in motion personalities and political parties which are least bothered by constitutional norms and precedents. If these new forces and personalities were to conclude that the judiciary decided to become a partisan voice, the very legitimacy and respectability of the constitutional arrangements would come into challenge.
True, higher judiciary is called upon to interpret the law and to sit in judgment on the legality and constitutional validity of a law. Equally true is that all constitutional interpretations have political consequences. Nonetheless, the requirement in a nascent democracy like ours remains that the judges perform their designated tasks in a manner as not to give the impression of their playing the politician’s game. The judicial role is and must remain distinct from the political. It is the politician who faces the consequences of his executive or legislative actions.
As a distinguished Chief Justice of Canada, Right Honourable Beverley McLachlin once wisely counselled: “It is not for judges to set the agendas for social change, or to impose their personal views on society. The role of judges is to support the rule of law, not the rule of judicial whim.”
The Mathur-Katju observation is an Indian version of the very obviously sensible advice, anchored in the realities and infirmities of our judicial system. Those who care for the autonomy and robustness of the Indian judiciary have an obligation to rediscover the usefulness of restraint — as well as the dangers of overreach.
It was no surprise that within days of enunciation of the eminently reasonable A.K. Mathur-Markandey Katju doctrine of judicial reasonableness, Chief Justice K.G. Balakrishnan sought to reassert a maximalist view of what their Lordships can do or cannot do. The wise and sensible exhortation by the Mathur-Katju Bench was for the judiciary to rediscover “the self-imposed discipline of judicial restraint.” Perhaps it was intended to help dismount the judicial over reach tiger.
The only surprise was that it was the Chief Justice who deemed it advisable to suggest that the Mathur-Katju argument be spurned because Mr. Justice Balakrishnan himself has been suspected of abandoning the forward posts of public interest litigation. Yet no one is surprised because a very potent convergence over the years of institutional forces, intellectual impulses and politicised individuals has egged the higher judiciary to “behave like emperors”— to use the Mathur-Katju phrase — and this phalanx is not prepared to come down from the giddy heights of activism. Senior lawyers and other “civil society” voices have pitched in with dark hints of how unhealthy forces will run amok if they feel that the judiciary is unwilling to step in. In this perspective — essentially an upper caste/upper class prejudice — the higher judiciary is the only uncorrupted and incorruptible guardian of constitutional values and good governance.
The discord within at the very apex of the pyramid once again draws attention to the lack of jurisprudential coherence, an intellectual and doctrinal infirmity that puts all higher judges on the same Solomonic pedestal of wisdom and prudence. The only hint of gradation is in the numbers of judges behind a verdict: a three-judge Bench, say, is ipso facto deemed superior to a two-judge Bench, irrespective of the facts, arguments, explanations, judicial philosophy, clarity of prose, respect for precedents, constitutional history, etc. The device of a constitutional Bench too is no longer producing lasting jurisprudential benchmarks.
Given this institutional inability to produce jurisprudential coherence, it is only natural that the Mathur-Katju advice should have been seen as a call to close the PIL shop. There is a classic case of red herring. An independent, autonomous and vigorous judiciary is at the core of any democratic arrangement, and such a vigilant judiciary should always be available to the citizens against a callous administration. There is nothing in the Mathur-Katju judgment to suggest that the Supreme Court and the High Courts dilute the protection they provide to the citizen.
The reason why the Mathur-Katju observation has been greeted with so much disdain is that it seeks to remind everyone concerned of the creeping judicial waywardness. The point has been made by others; but this is the first time the reminder has come from two judges who have a reputation for independence and thoughtfulness. Not even the best defenders of judicial activism can be indifferent to recent controversies involving judicial personalities and pronouncements, bringing into disrepute the very institution.
The Mathur-Katju plea for judicial self-restraint is essentially a call for return to non-partisanship in the political arena. Given the far from perfect procedure for selection of judges for the higher judiciary, and given the near-total absence of any disciplinary mechanism against an errant judge, it is only natural and only a matter of time before the Bench starts departing from strict legal neutrality and personal disinterestedness. Involvement of judges with political parties after their retirement has distracted from the judiciary’s claim to political distance. Increasingly, the judges do not even want to wait till after retirement to indicate their political likes and dislikes.
Judicial protection
Take the case of the All-India Institute of Medical Sciences. Judicial protection was provided to a director, all in the name of protecting the AIIMS autonomy against presumed political interference. The institutional autonomy was interpreted as total independence for the director of a publicly-funded organisation against a Health Minister, unfamiliar with the pretensions and protocols of networking within the capital’s powerful elites. This “protection” became a licence for the director and his clique to join hands with political and ideological opponents of the Minister.
Because of the judicial protection, the AIIMS establishment felt encouraged to oppose a change in the reservation policy. This was pure and simple political partisanship. A section of the judiciary ended up protecting insubordination against the lawfully constituted constitutional authority, ultimately leading to an equally distasteful and drastic change by Parliament in the law governing the AIIMS.
At the core of the judicial involvement in the AIIMS was a larger itch: “Come to us — for protection.” And this is what the Mathur-Katju Bench sought to warn against: “Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the state to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.”
And “reaction” is already there. Only a few days before the Mathur-Katju observation, did the Lok Sabha have a long discussion on judicial over-activism, though the parliamentarians were reticent enough to call it a discussion on the “need for harmonious functioning of the three organs of state — legislature, judiciary and executive.” And if the leaders on the Bench and the Bar read a transcript of the debate, they would not miss the impatience and incomprehension with the ways and manners of the higher judiciary.
Perhaps those who man the portals of the higher judiciary have shrewdly calculated that the Indian polity will never recover from its present-day debilitating fragmentation, and will consequently never have the collective voice to challenge the judicial overreach. The Union Law Minister, who is otherwise highly respectful and appreciative of the Bench, told his colleagues during the debate: “I cannot criticise the judiciary. A Law Minister cannot ... but I can say with full responsibility that the supremacy of Parliament is not the same as it stood before Kesavananda Bharti’s case. The Ninth Schedule is in question nowadays. The other things are in question. Your resoluteness will be required. It is the firm voice of this House that is required…”
The Minister’s plea for parliamentary “resoluteness” is not a call for “confrontation” with the judiciary. It only gives expression to the creeping view that an imbalance has been allowed to come to define the governing mechanism in our complicated polity. A warning has been sounded.
In fact, the very fractured nature of the polity that gives the judiciary a larger institutional elbow room also sets in motion personalities and political parties which are least bothered by constitutional norms and precedents. If these new forces and personalities were to conclude that the judiciary decided to become a partisan voice, the very legitimacy and respectability of the constitutional arrangements would come into challenge.
True, higher judiciary is called upon to interpret the law and to sit in judgment on the legality and constitutional validity of a law. Equally true is that all constitutional interpretations have political consequences. Nonetheless, the requirement in a nascent democracy like ours remains that the judges perform their designated tasks in a manner as not to give the impression of their playing the politician’s game. The judicial role is and must remain distinct from the political. It is the politician who faces the consequences of his executive or legislative actions.
As a distinguished Chief Justice of Canada, Right Honourable Beverley McLachlin once wisely counselled: “It is not for judges to set the agendas for social change, or to impose their personal views on society. The role of judges is to support the rule of law, not the rule of judicial whim.”
The Mathur-Katju observation is an Indian version of the very obviously sensible advice, anchored in the realities and infirmities of our judicial system. Those who care for the autonomy and robustness of the Indian judiciary have an obligation to rediscover the usefulness of restraint — as well as the dangers of overreach.
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