The function of the judiciary is not to stand itself against the policy and politics of majority rule. Courts are there to test the validity and constitutionality of the actions of the state.
Judicial activism in India is again in the net of criticism with the Supreme Court making observations on its overreach, with references to several orders passed in relation to the demolition of unauthorized constructions, nursery admissions, air pollution, motor vehicle fines and so on.
In the past, the Supreme Court has clarified that policy decisions are the prerogative of the executive. Yet courts routinely pronounce verdicts on policy matters that require no legal or constitutional interpretation.
Recently, the Delhi High Court issued a notice on a self-serving petition filed by some South Delhi Residents Associations, wanting the Delhi Metro to go underground, notwithstanding the heavy cost involved. Clearly, the evidence of judicial overreach is now too obvious and pronounced to be ignored; hence the observations of the Supreme Court need to be welcomed.
Often judicial intervention causes more havoc than the policy it seeks to correct. Take the example of the Monitoring Committee set up by the Supreme Court in the drive to seal unauthorized commercial establishments in the national capital. There cannot be any doubt that the committee's work as some sort of parallel executive body has only served to intensify the conflict between the judiciary and the executive.
Judicial interventions in policy related matters must be few and far between and must fall within the parameters and ambit of law. The judiciary is not an elected or representative body, in touch with the people, and judges have hardly any experience in matters relating to public health, education and poverty alleviation programmes. Policymaking is best left to the executive. That is why the judiciary must know its limits and must not try to run the government
This is not to say that courts must not intervene to enforce the rule of law. The timely intervention of the Supreme Court in the extra judicial execution of Sohrabuddin Shiekh and his wife Kauser Bi in Gujarat in November 2005 by three senior Gujarat police officials has brought increased spotlight on clandestine extra judicial executions and encounter deaths across the country. A contempt notice has even been issued against Narendra Modi for his recent utterances in an election rally in Gujarat justifying the Sohrabuddin encounter death.
It is the job of the judiciary to promote, safeguard and protect the fundamental rights of citizens enshrined in the constitution. In this context "social action litigation", like the one seeking rehabilitation of the widows of Vrindavan, as opposed to "public interest litigation", like the one seeking the court's intervention in the traffic chaos at Thane in Maharashtra, needs to be promoted, thus drawing the line between social issues and those that can be solved easily by the executive.
Little has been done to discipline trigger-happy judicial officers manning the subordinate judiciary. Non-bailable warrants of arrest are routinely issued in frivolous prosecutions initiated by persons of questionable credentials. This brings us to examine an issue of great significance to the Indian judiciary - the issue of "Lesser Men" occupying judicial posts.
Recently the Delhi High Court had occasion to reprimand a junior judicial officer for insubordination and failure to follow the law. The judge was asked to undergo a refresher course at the Delhi Judicial Academy. What remains to be seen is how this judge's performance is monitored in future and whether he benefits from the public reprimand he received.
Transparency International India, a forum registered under the Societies Registration Act 1860, Delhi, in its report on the judicial system recommended the need to monitor the quality of judges and their judgments and the need to screen judicial appointments, making them more transparent and merit based. At present, the high courts are constituted of judges appointed from the bar and promoted from the higher subordinate judiciary.
Inevitably, promotee judges are appointed on the basis of their seniority in the cadre, which as a policy needs to be urgently reviewed. It is imperative that all judicial appointments are based on experience and performance and a solely seniority based collegium is not a good innovation. Regrettably, the selection and appointment of judges is not based on socially sensitive, honest and democratic considerations. Authority without virtue is dangerous and this makes the question of transparency in the appointment process real and urgent.
Earlier this year a parliamentary standing committee, chaired by E. M. Sudarsana Natchiappan, stated that "to meet the ends of social justice and equity," the quota for the Scheduled Cates, the Scheduled Tribes and Other Backward Classes (OBCs) should be extended to the higher judiciary. While reservation has become an extremely contentious and divisive issue today, it is nonetheless important to deliberate on this suggestion.
Significantly the South African interim constitution mandated the creation of a Judicial Services Commission (JSC) for purposes of selecting and recommending persons to the higher judiciary. Section 174(2) of the South African Constitution states: 'The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed'.
One important factor that guides the JSC is diversity, which is a quality without which a court is unlikely to do justice to all citizens of the country. Diversity is not treated as an independent requirement, superimposed upon the constitutional requirement of competence, but rather as a 'component of competence'.
While in India the present mode of selection of Judges to the higher judiciary ensures the independence of the institution, it does not address the issue of diversity. Instead of following the thorny route of reservation it would be beneficial to consider the creation of a Judicial Commission that would play a role in the appointment process and also ensure that diverse groups including gender, region, caste, religion, disability etc. find representation in the higher judiciary. This can only strengthen the faith and confidence of the people in the judicial process.
The judiciary also needs to introspect and self-regulate. There is a considerable body of opinion that subscribes to the view that when concerns are raised about the conduct of a high judicial functionary, it is within the public domain to seek an impartial inquiry into the correctness or otherwise of the allegations.
Corruption in the judiciary corrodes the rule of law. Allegations of corruption against a judge should be rigorously investigated and judges should receive limited immunity for actions relating to judicial duties. The biggest setback received by Indian democracy in the year 2007 was the unwillingness of the judiciary to initiate a fair and impartial inquiry into the concerns raised about a former chief justice's conduct.
Such an inquiry would have done much to alleviate the public's confidence in the Judiciary and would have even given an opportunity to the Judge to put to rest any concerns that the public had with regard to his alleged conduct. Instead, the Judiciary reacted petulantly and sentenced four Journalists of 'Midday' for contempt of court. No attempt was made to inquire into the truth of the charges. The Delhi High Court took suo motu cognizance of the new reports published in 'Midday' accusing the former chief justice of India of nepotism and ruled that the publication of the reports scandalized the judiciary and was nothing short of contempt.
In a democracy, it is inevitable that institutions should evolve with the passage of time and part of that process of evolution is questioning the manner in which institutions function. The year 2007 has seen more of those questions being asked than any real evolution.
(Rebecca Mammen John is a criminal lawyer practising in Delhi High Court. She can be reached at email@example.com )