COURTS AND THEIR JUDGMENTS When a centuries old hierarchical society is under threat of replacement by an egalitarian social order the magnitude of the socio-political tension and chaos thrown up by the confrontation is bound to be enormous:
With the electors, the overwhelming majority of whom have yet to learn democratic governance, voting their castes in the periodic elections, with most of those elected from among them who fill the Parliament and Assemblies also not knowing democracy, the Executive made up of sections of the so elected not only carries the imperfections and inadequacies of the Legislatures, but more importantly confounds them with the perfidies of power.
While the result is a vicious nexus and a vicious circle involving the electorate, Legislatures, and the Executive, democratic governance in India even at the best of times has been a farce and the Executive continues to work in tandem with the old order with all its invidious discriminations. The victims of this tandem structure are predictably the electors themselves, especially the unwashed millions, who are at the mercy of politicians, bureaucrats, middlemen, fixers, criminals, power brokers, and what have you.
It is in this context they turn for succour to the Judiciary. Protecting and upholding the Constitution, ensuring democratic governance in keeping with its provisions, and delivering justice speedily and efficiently are the most important of its functions. But if Arun Shourie’s book is any indication the Judiciary is a god that failed. Among his observations, only eight are mentioned here.
One, misuse of law: The law against misusing courts to drag persons into vexatious litigation is just as clear, as courts have thought fit to take cases on board which, at least to a beleaguered author, seemed to be of a kind that deserved to be rejected at the threshold.
Two, god’s mill: The contempt petition came up, and was adjourned. It came up again, and was adjourned again. This went on and on. During 1985 the case was adjourned seventy-eight times.
Three, judicial inaction: But it is also true that sometimes the courts could not be persuaded to do what seemed clearly within their power, what seemed to be manifestly mandated by law.
Four, verdicts unalloyed by contexts and facts: A feature that strikes one as one sits listening to arguments in a court, as it does when one reads judgments, is that judges consider each issue as an issue in itself – isolated from the context of society, often independently of the consequences that it requires little imagination to see will follow from it. Furthermore, different principles, different encapsulations of a principle impress themselves upon the judges on different occasions. In judgment after judgment one comes across a determined effort to not let facts come in the way of the verdict. After all, judgments are replete with perorations. It is not that they adhere solely to matters legal: discourses on social philosophy, on sociology, on India’s history – rather, the dominant versions of these – are commonplace. Indeed, sometimes it seems that the particular case is the occasion that the judge has been waiting for to deliver himself of opinions on some subject: so little in the judgment turns on the oration.
Five, law in book v. law in action: While the courts often give sweeping directions – ones that get bold headlines, ones that raise hope among citizens – they do not as often follow these up to see whether the Executive has carried them out. An important function of the courts is to proclaim ideals before society, to stretch the Executive so that it puts in the maximum possible effort. But it should be equally evident that if rulings – or laws – are so far ahead of reality; or if courts having decreed a remedy, do not follow up to ensure that it is being adhered to they run the risk of compounding cynicism – about courts, about laws, about the Rule of Law.
Six, passiing files: The general tenor of rulings and their tilt have helped create an environment in which it is safer to pass files around than to take a decision, in which it is prudent to go through the motions of doing things than to actually do them.
Seven, goodbye to merit: The courts have helped drive merit completely out of governance. By straining so much in favour of equality, fairness, non-discrimination, courts as much as our politicians and intellectuals, have helped make mediocrity – indeed, non-performance – the norm. The consequence of this denigration of merit and excellence, as of rights-mongering, the consequence of reducing administrators to regurgitating rules of thumb has been to paralyse governance, to induce administrators to spend their days going through the motions of doing things rather than actually doing them.
Eight, judicial spins and jigsaws: The judgments – for instance, those mandating equality, those striking down disciplinary proceedings because some ingredient of natural justice has not been complied with fully – are not being delivered in a vacuum. They are being delivered in times when rights mongering and grievance mongering have become the staples of public discourse. They are being delivered at a time when public life is in the hands of a weak political class. This combination has lethal consequences.
Shourie makes it clear that his quarrel is not with judicial activism, but with the barnacles that have got attached to its hull.