Jus Spake Part III

Vol. 3.

Responses to the question on whether the Indian Judiciary has gone over board have found a near unanimous response.  The nuances may differ but the verdict clear and in favour of then Indian Judiciary.  To all it seems the final sentinel.  The watch dog that may over do its bit on one outing but by and large the only reliable precinct of our democracy.

Pramod Reddy: a lawyer examines the issue strictly from the lens of  the constitution: Given Art 32 226, how and where does one draw the line? The power, even viewed textually, exists, more so in the case of Article 32 for the judiciary to intervene when fundamental rights are violated. Once we admit that fundamental rights can have positive content (imposing affirmative obligations on the State), in a country such as ours, where inequality is endemic, deep, and even horrific by any stretch of human conception (notwithstanding what morons like Yum Yum Singh and his cohort economists say regarding gini coefficient), it would be difficult to suggest a bright line test.  Donning the skills of the advocate he proceeds: does it mean then that we leave it to individual judges discretion? Is it or would it only degenerate into a situation of the preferences of judges and which side of the bed they get up on? I think, viewing it from 30,000 feet in the sky the situation probably does not appear so bleak. Take the number of PILs’ that are actually filed, the ones admitted, and the ones that get resolved in favour of the public. The percentage is probably miniscule. From the perspective of authority of the Constitution, a more than reasonable argument can be made that in fact its protections are extended all too little to the common guy/gal, and the situation is probably worse with respect to the fella/lady from the shacks and the boonies. As a constitutional democracy, given the state of affairs with respect to legislative integrity and executive perfidies, I think we are at a situation when the reasonable assessment would have to be that the constitutional protections and promises of dignity/fraternity for the individual and groups is an existential sham. The miniscule percentage of cases in which one institution of the State, the Court, provides some succour may even be nothing more than quixotic tilting at windmills; nevertheless, it keeps one small spark alive that the belief that the State ought to be accountable is completely absent.

Not willing to stall the analysis, he adds:However, the issue is with regard to the kind of cases that the courts do interfere in. Too many people, wrongly, accuse the courts of activism when they order the executive to do something – say distribution of food grain rotting in the public warehouses. The response of one Yum Yum Singh was classically moronic, and not in the least amoral: that (a) the judiciary ought not to be dictating to the executive what it ought to be doing; and (b) that such distribution would affect the markets. The amoral aspect consists of the fact that (a) malnutrition amongst the poorer segments is horrible, and it is morally intolerable that grain rots on warehouses while hundreds of millions suffer; and it is moronic because (b) that degree of suffering is intolerable not merely because it is morally wrong, but also because right to life is substantially eviscerated of content for hundreds of millions, and equally importantly it also derogates from the moral authority that the State can exercise on the population to prevent social disaffection. It amounts to a fraud on the face of the constitution; markets are social constructs, and markets have to be monitored and modulated in a manner that allows the State to undertake its affirmative obligations.

IN the final analysis it is thus clear that at least it is a populist and popular view that the judiciary is by and large doing its job.  Not many Indian institutions get such an overwhelming vote. Not now.  This is thus one silver lining. There is hope.  Look up at the Lords as the Bharata Bhagya Vidhata.

L.Ravichander