Judicial overreach?

Over the quarter century or so, India has developed an unusual and often-effective brand of judicial activism in wide-ranging matters from property rights to environmental law. In the more recent past, egged on by the New Media which is not as scrupulous about fundamental principles of the union as it is hungry for action, and unquestioned by a nation disenchanted with the legislative and executive arms, courts have had a growing say in everyday affairs of the nation.

But surely there is a line somewhere between activism and trespass? Judicial activism is romantic, but is it right?

Currently in the news is an ongoing attempt by the Supreme Court to render failure to file a First Information Report (FIR) by the police as contempt of court, punishable by a jail term. It stemmed from complaint filed by Lalita Kumari of Ghaziabad, UP, about local cops who refused to file an FIR about the kidnap of her 16-year old daughter. In response, the court sent notices to all states seeking explanation why FIRs were not being lodged as per the law. When all but two states failed to respond to the court's request, the bench lost its cool:

"Earlier, there was a concept of Ram Rajya. Even during the freedom struggle, people used to believe in swaraj but now that's gone. People now need huntering(flogging); nothing seems to be moving without it..."

The bench followed up by emphasizing the directive that local Magistrates should punish police officials who fail to lodge an FIR without adequate reason.

In another well-publicized happening last week, the Supreme Court dropped its attempts to persuade the federal and state governments to amend Section 441 of the Indian Penal Code to make non-vacation of government accommodations a non-bailable offence. Frustrated by the stubbornness of all but a handful of state governments to modify their laws, the court spewed:

"In India even if God comes down he cannot change our country. Our country's character has gone. We are helpless..."

In both the above cases, the court went out of its way to issue dramatic verbal observations supposedly meant to grab the attention of the media (at which it was successful). Another common factor between the two cases was the presence of Justice B N Agarwal on the bench, who seems to be good at playing the PR game.

I do understand the court's frustration in both cases and empathize with the public support for the benches' activism, but I have questions about whether the court stayed within its constitutional bounds. I can't make up my mind about the first case, but the second case surely seems like a no-brainer - the duty of courts is to administer justice, not to motivate laws. No?

Apparently I am not the only one worrying about it. Early last year, Prime Minister Singh warned a conference of chief ministers and high court chief justices:

"The dividing line between judicial activism and judicial overreach is a thin one...a takeover of functions of another organ may, at times, become a case of overreach."

But my (and Dr Singh's) worries about constitutional trespass by the judiciary have little backing in the revered document itself. The Constitution is vague about the division of duties and powers.Former Supreme Court Justice Ruma Pal writes:

In fact, with so much Constitutional overlap in the functioning of the three organs of Government, the Indian Constitution itself does not indicate a separation of powers as is commonly understood. As I see it, there is, to a large extent, a parallelism of power, with hierarchies between the three organs in particular fields.

Not surprising then that the Supreme Court itself is a house divided over where the line between activism and overreach is. In April 2007, Justice Markendeya Katju of the Supreme Court came out against his activist colleagues:

"I am entitled to register my objection to entertainment of all sorts of PILs. Judges should exercise some self-restraint. The Supreme Court has become an authority on all subjects, be it health, education or even election."

And again in December of that year, a bench populated by Katju and another judge opined:

"Courts cannot create rights where none exist, nor can they go on making orders...violative of other laws of settled legal principles."

But, on the bright side, India's democracy is safe with the oversight of the Supreme Court since the court itself does seem to operate on the most fundamental principle of democracy - majority rule. In response to the Katju's two-judge bench opinion mentioned above, a three-judge bench headed by Chief Justice K G Balakrishna snarled back:

"We are not bound by a two-judge bench order."

:D