Prime Minister Narendra Modi was not wrong in suggesting that the higher judiciary often sways to the tune of the `five-star civil society activists.’ Speaking at a conference of chief ministers and chief justices in New Delhi the other day, Modi had a lot of good things to say about the higher judiciary, its positive role in correcting other branches of the Constitution should they stray from their designated tasks, but he also had a word or two of criticism. Among the latter that made headlines was his peeve that the courts often sang to the tune of the `five-star activists.’ Given that the cottage industry of NGOs, well-funded and well-networked, has made it a business to make a splash in the media and every now and then seek judicial intervention in support of its own agendas, Modi probably was not off the mark. Indeed, the charge that the judges, who ought to know better, often get influenced by the shrill media campaigns, is undeniable. On numerous occasions the courts have played to the gallery, without caring to be strictly within the four corners of the law. The lay public applauds such interventions, especially when the people see an unresponsive executive. The entire PIL jurisprudence was born out of the seeming failure of the executive on several social and economic fronts. PILs have also resulted in ridding big metros like Delhi of polluting diesel buses. However, the downside of judicial activism is its overreach into issues and domains strictly out of its purview. PILs are misused by rival business houses to settle scores, or to kill competition. Vested interests have misused PILs to block welfare works, like roads and bridges. Courts, especially at the lower levels, have hurriedly granted stays on projects without first finding the actual facts or the impact of the stay orders. Courts undertaking to fix the height of dams, or the height of buildings in urban conglomerates or fixing the term of senior government functionaries also seems rather excessive. If the judiciary has got away expanding its powers, it is essentially because the executive and to an extent, the legislature, have failed to come up to the expectations of the people. Among the three estates, the judiciary still enjoys public trust, though there is no dearth of errant judges with their peccadilloes making headlines at regular intervals. Also, the judiciary itself has to resolve the endemic problem of mounting arrears of cases, which at last count, numbered more than three crores. If the executive is responsible for not sanctioning adequate strength of judges, or failing to provide the necessary infrastructure and budget, it is a matter which the highest judicial authorities can legitimately take up with the highest in the government. But when it is the highest court, which for undisclosed reasons, fails to fill up sanctioned vacancies in high courts, the blame must lie with the CJI and his colleagues. If competent lawyers are reluctant to become judges, the judiciary, in consultation with the executive, must make the position of the high court and the Supreme Court judges more attractive.
Indeed, it is a moot point whether some of the public controversies involving serving and retired judges are due to the wrong appointments or the gradual fall in standards all around. For instance, the rantings of retired SC judge Markandey Katju bring into disrepute the entire appointment process to the higher judiciary. Why, even the protest by a sitting judge on the joint conference of judges and CMs being held on Good Friday reveals a complete disregard for the dignity of the higher judiciary. Ironically, the protesting judge was not even expected to participate in the proceedings, since he was not among the three seniormost SC judges. Another SC judge revealed his jaundiced view when in an open court, he wondered about the future of secularism in the country. There are too many instances of the higher judiciary falling prey to the propaganda and prejudices prevalent in the society, thus raising a question mark about the judiciary’s own competence to steer clear of controversies for it to be able to appear fully independent while dispensing justice. The point is that like the other branches, the judiciary too has suffered a steep fall in standards. Avoidable controversies undermine the institution of judiciary. As does the weakness of some courts and some judges for ‘five-star activists.’ The PM did well to sound a note of caution in this regard.