Judicial activism in India

The court, like the common citizen, is reacting to a widespread concern about politics being usurped by the criminal.

In the absence of clear-cut executive decisions, and the seeming disconnect at times between the people and the legislature, more and more petitions are coming up before the courts in India that have less to do with the law and more to do with governance.

A recent ruling by the Indian Supreme Court ensures that persons in lawful custody cannot contest elections, and that a legislator, if convicted by a court, will have to be disqualified. Predictably, this has generated a storm, with political parties uniting against the decision. Civil society is caught between its growing dislike for politicians, laced by the realisation that many have criminal backgrounds, and a certain uneasiness with the courts’ intervention in issues that should not really fall under their jurisdiction. Television news channels have taken a strident pro-court view, lining up politicians at the regular talk shows where moralistic anchors interrogate them on behalf of the ‘nation’, of course.

However, close scrutiny raises several disquieting questions. Politics is not as black and white as the application of law needs it to be. Democracy is replete with instances of cases being filed against opposing individuals, with the honest, struggling political worker probably more at the receiving end of this than the muscle man and the goon who get away by generating fear and terror on the ground. The stronger political parties, particularly those in government at any particular point of time, control the law and order machinery and will thus find it easier to lodge false first information reports (FIRs) against their political rivals. Legal cases in India take years to be heard and concluded, and hence, the court ruling can actually debar a person convicted by a lower court for life — as his or her appeal to the higher courts can take years to be heard, if not decades. The ruling will thus encourage a host of FIRs, with politicians seeking to score over their rivals, with the advantage resting with the political parties in power in the states or the centre.

The court, like the common citizen, is reacting to the widespread concern about politics being usurped by the muscleman and the criminal. The political worker, who has risen from below, is being overshadowed at levels by the criminal, who often sails in from the top because of his grip on a particular constituency or community. Criminalisation of politics is an issue that is being discussed at different platforms, with the election commission recommending electoral reforms to deny the criminal political legitimacy. However, nothing really has been done about this till now with the political class wishing away the problem. The court’s ruling has now shaken the political parties that have suddenly realised that the ostrich-like attitude has not worked in their favour.

In another wide-reaching judgment, the Allahabad High Court ordered a ban on caste-based rallies across Uttar Pradesh where this is a norm. This will, in all likelihood, be challenged in the apex Court, but given the fact that several political parties are caste-based parties, this will have deep repercussions on the ground.

It is time that the political class realises that the only way not to surrender ‘sovereignty’ to the courts is to ensure that the legislatures remain responsive to the concerns of the people, that laws are passed with this yardstick in mind and the executive takes quick, hard decisions with the sole criteria being pro-people good governance. In the absence of this, the people are left with no mechanism of redressal except the courts that then can assume or abuse the power given to them through public interest litigations and other such appeals. The citizen needs relief, and when push becomes shove, will look for it from any institution of the state that responds positively.

The courts in India have been doing a good job, despite the huge burden of litigation and still carry levels of credibility, particularly at the top. It is not easy for governments to run down the higher courts without inviting public criticism. This is the sign of a working institution and hence, it is imperative that the judiciary is kept as sacrosanct as possible without being drawn into the fire of judicial activism that can then create controversy where none should really exist.

Published in The Express Tribune, July 13^th, 2013.

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