CHENNAI: The Marina Beach is much cleaner in recent days, thanks to the judicial activism of the Madras High Court in compelling the bureaucrats to act. A cleaner beach is always good, but this case is also a pointer to the phenomenal changes in the ways the high court wields its power in recent years. The high court is no longer confined just to the specific facts and legalities of the cases filed before it. Now a judge’s personal impression on what he sees around him - say when he goes out for a morning beach walk - often changes immensely the way the city or even the State is administered and hence everyday lives of people. Many motorcyclists in recent months being finally made to wear the helmet is another case in point.
Though many of these interventions have been welcomed, the implications of this changed conduct of the high court on the governance framework in a democracy has largely gone undiscussed.
Any discussion on the topic should start with the fundamentals. For this, one has to go back to the 18th century when the French writer Montesquieu formulated the doctrine of separation of powers among different and independent arms of the government. This is what is often called as the three pillars of democracy — the legislature, executive and judiciary. The legislature (The parliament and the state assemblies) makes the law, the executive (the ministers and the bureaucrats) implements them and the judiciary (the various courts) interprets the law and administers justice.
The separation and making each arm independent are to ensure that power is not accumulated in a few hands and limit the possibilities of arbitrary exercise of power. Indian Constitution, like most other modern countries, is based on this concept of separation of powers between the three wings of the State machinery.
A different domain
In the cases of both the Marina Beach clean-up and the enforcement of the compulsory helmet rule, what has gone unnoticed is the high court taking up the task of executive and even the legislature. The high court has entered into what should be the domain of the city mayor and the city police commissioner. The positive outcome apart, this is a fundamental shift in governance structure. In the hands of the court, power of all three wings of the state machinery accumulates. This is directly against the Constitutional principle of separation of powers.
Among a few other orders or suggestions by the Madras High Court, such as compulsory fertility test for couples before marriage, periodic playing of ‘Vande Matharam’ in all institutions, removal of seemai karuvelam plants and the shifting of the Dr Ambedkar Government Law College, some have been implemented and some overturned by larger benches.
One may welcome or oppose the high court orders based on the personal opinion. But they underline the fact that the court is making or influencing decisions on issues of governance that are domains of other organs of the State. Speaking on this trend, former Madras High Court judge K Chandru says, “The high
court judges have learnt the wrong lessons from the Supreme Court.”
He pointed to the Supreme Court’s ruling in the famous Vishaka case which first mandated internal sexual harassment complaint cells in every workplace. The court performed the role of the legislature in making a new law to fill a vacuum, but this ruling was hailed for its acumen. The Parliament too accepted it and subsequently passed an Act based on the order. “This has inspired many judges and they also want to create a mark for themselves,” Chandru said.
But the same Supreme Court has also many times reminded the judges, the limitations of their role and why they should self restrain from entering domains of executive and legislature. In 2007, a Supreme Court bench of Justices AK Mathur and Markandey Katju, quoting Richard Neely (former chief justice
of the West Virginia Supreme Court), said: “I have few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst... It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting it’s judgement for that of the administrator.”
The case on the removal of the seemai karuvelam plants is an example of this lack of expertise in spheres other than judicial. After the court initiated the process of removing the seemai karuvelam plants by making the district judges personally supervise the process, another bench stayed it after conflicting expert opinions emerged on the issue.
Need for informed opinion
In the Marina Beach clean-up case, the high court also wanted the fishermen evicted from the Loop Road at Foreshore estate to make the road wider for people going to the beach in vehicles. The fishermen say their market existed at the same spot even before the road was built and moving them any
place away from the sea, their source of livelihood, will be disastrous for them. It requires social science experts and understanding of the realities through a patient listening — to views of various stakeholders — to take an informed opinion in such matters of conflicting interests.
The electoral democracy does provides space for this since elected representatives, unlike the courts, do depend on people for votes or hail from different communities and hence are forced to give consideration to people’s view. “If the courts take decisions on policy matters, who is there to scrutinise them? When courts make law, who can question it?” asks Justice K Chandru pointing out that in contrast, the Parliamentary form of government provides space for debating and discussing the decisions of the government. However, the fear of contempt of court narrows down any debate on divergent views when similar decisions are taken by the courts.
Former Madras High court judge D Hariparanthaman says in many instances the judiciary is forced to intervene only because of the failure of the Executive and the politicians. “However, the interference of the courts in the matters of executive or legislature is not good for a democracy as it violates the Constitutional scheme of things. Since they have lost trust in the executive and politicians, people think
courts can do wonders. But they certainly cannot.”
He says the interference of the judiciary into the sphere of legislature has at times been detrimental to the social justice principles. “Where is the 50 per cent cap for reservation in the Constitution? There is no concept of creamy layer too,” he said, pointing out that these were introduced by the courts. He said most of the rights enjoyed in the modern world are obtained by protests by people for their rights. “Gandhi, Ambedkar and Martin Luther King did not go to the courts,” he said.
The right way
So should the judiciary be a mute spectator or completely aloof to gross injustice? There are rather good examples on how judiciary can ensure justice even as it stays within the Constitutional limits. The Madras High Court recently struck down the land acquisition process for the Chennai-Salem Expressway project since the government had violated procedural norms and failed to have a proper reason for a policy decision it took. In this case, the court did not venture into domains of the executive or the legislature. But it used power of judicial review to check whether the government was abiding by the laws in executing the project and was it just and fair in weighing the conflicting concerns of the farmers, ecological loss and the anticipated benefits of the project.
A similar case was striking down of Section 66A in the Information Technology Act on grounds that the legislature had included ambiguous words that might curtail freedom of expression and hence unconstitutional. Another recent example is the high court ordering compensation to a woman who contracted HIV in a government hospital and making the government perform its lawbound duty.
A 2007 Supreme Court verdict too specified when the judiciary should stay within its domain, and when it should correct the course of the other organs of the State so that they also stay within their Constitutional mandate while preventing injustice. “When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limit,” the Supreme Court said.