At the heart of the controversy is the legitimate Constitutional role of the Supreme Court as the interpreter of laws and the lines to be drawn between the legislature in making laws and the court in interpreting laws. This is indeed a very old controversy and surfaces in every country in which Constitutional courts have the power to interpret the Constitution and laws.
While judges would like to believe that they interpret laws and not make them, one knows that the shaping of a law is also the making of a law. So much so, we have learnt to live with and we expect our judges to shape the law.
Undoubtedly, in the interpretation of a law, a judge's individual bias does come into the picture. That raises questions of the appointment of judges, who gets appointed and why. These are legitimate questions. The trend noticed over the years is that well-connected, well-endowed and well-related people get appointed. This also means that there is a class bias operating in the matter of appointment of judges. What is even more frightening is that children of judges get appointed judges frequently.
The recent statement made by the law minister on the floor of Parliament that the Executive must have a role to play in the appointment of judges merits attention.
The present controversy, however, is an extension of this old debate. It is unfortunate that it has got mixed up with Public Interest Litigation. The problem lies in the name, Public Interest Litigation; judges have been entertaining petitions which raise policy and political issues. The decision to entertain a petition or not, is a critical one. Petitioners, who have no track record of any work of human rights, file petitions in the name of violation of Fundamental Rights and if the presiding judge is of the opinion that the issue is important (never mind that it is not an issue capable of legal resolution), they will entertain the petition and thereafter the judgment acquires the stamp of legitimacy of the Supreme Court of India.
The Supreme Court then gets hijacked for political agenda by politically motivated people, all in the name of violation of Fundamental Rights.
The two judges of the Supreme Court who gave the widely-reported judgment raising the issue of limits of judicial intervention pointed to two such instances, viz, in the cases of Jagdambika Pal v Union of India and Ors (1999) 9 SCC 95, and the Jharkhand assembly case of Anil Kumar Jha v Union of India (2005) 3 SCC 150.
The open-ended entry to the Supreme Court makes it vulnerable to manipulation not only by political manipulators but also by many others. Two glaring examples come to mind. One is the massive intervention of the Supreme Court in the designing of the Master Plan for Delhi, and the consequential direction to seal non-complying users. This decision, kickstarted with then Chief Justice Y K Sabharwal and continued by the current bench presided over by Justice Arijit Pasayat, led to the loss of livelihood of half of the residents of Delhi.
Here is a case in which the legislature decided that there should be a moratorium on sealing, a redefinition of what is commercial and what is not, to enable a solution to a problem which is endemic and has been in existence for several decades. The Supreme Court thought otherwise and began to examine the plan to look into the question whether there was sufficient infrastructure like water, electricity and parking facilities in the city to permit that kind of user. It appointed its own monitoring committee to monitor the implementation of its orders, bypassing established enforcement machinery and delegating its own power to a bunch of handpicked individuals. This indicates a complete breakdown of the system of judicial administration.
The court is now charged by two of its own members as 'overstepping its limits' (though not in this case, the argument applies equally). Justice Y K Sabharwal is charged with having improper motives for having passed the sealing orders. Whether or not this is true, the question remains, did the judges overstep their limits in deciding the rights and wrongs of a Master Plan? The undeniable fact remains that the orders not only led to the displacement of thousands of people but to the escalation of rents and property prices in an unmanageable manner. The status of the Master Plan remains undecided till date.
Another example was the stay of the Act permitting reservations of seats in institutions of higher learning. For several months the Supreme Court debated the merits and demerits of reservations as a policy, a question which is surely a social justice issue and a political issue to be debated by the nation in Parliament.
Let us remember that in the Supreme Court, the discussion is confined to a handful of Constitutional 'experts', making it very undemocratic. While this is acceptable for matters of legitimacy in the domain of the judiciary, it is not acceptable for larger social justice and policy issues. So now we have the judges of the Supreme Court debating these issues through their judgments.
While Justice A K Mathur and Justice Markandey Katju commented that there have to be limits to judicial activism, Justice S B Sinha retaliates the following day refusing to decide the issue whether women prisoners in jail are being denied their rights. Further, the high court retaliates by refusing to decide a petition relating to beggars, for being chastised by the Supreme Court in entertaining all petitions in public interest.
And while the judges fight it out, justice suffers. It is a pity that the judges have been unable to figure out the difference between Public Interest Litigation and petitions raising political issues. While a demand for justice by women in prison, children and beggars to improve conditions in beggars' homes clearly raises questions of violation of Fundamental Rights, directing a floor test for deciding the merits of a Master Plan may not.
It is for the judges to draw that line but to draw it in such a way that the doors of the court are not closed to the poor and the lowly. There is a collective responsibility expected from judges and an institutional response, which is not forthcoming. After all, collective responsibility is expected from the Cabinet and it is similarly expected from the Supreme Court.
The problem is that we have a generation of judges and lawyers who were not part of the history of the court when Public Interest Litigation was born out of the sweat and toil of the masses, out of those blinded in Bhagalpur, out of Hussaniara Khatoon who was in prison for periods longer than she would be if she was convicted, out of the workers who worked on the Asiad flyovers for wages lower than the minimum wages. And yet we have images of children working the plough in a farm in Bihar of a minister at the Centre. We have the Gujarat cases pending since 2002 in the Supreme Court with no chance of decision in 2007. Are these not fit cases for Public Interest Litigation? So why don't the judges take suo motu notice of them?
Nothing less than judicial accountability is at stake here.
Indira Jaising is a senior Supreme Court advocate