Whatever the interpretation offered by eminence grise in this country, and of which there are many, the Constitution of India is clear on one aspect: each institution in the country must be allowed to do its own work.
In other words, the legislature, executive and the judiciary have their respective roles cut out and must strictly adhere to their area of work and specialisation. That is the Westminster model, which the country’s founding fathers embraced in all their wisdom.
While in the course of India’s modern history there have been occasions when these roles have been subjected to varying and even overlapping interpretations, somehow things have never reached a stage as they have now, when the legislature and the executive have been declared virtually redundant at the expense of judiciary-made laws.
It would be no exaggeration to say that the Constitution of India prescribes that law has to be made by duly public-elected legislators. As do conventions of democracy. The judiciary – again by the constitutional decree – has been entrusted with the onerous task of ensuring that laws enacted by Parliament and state assemblies are in accordance with law, i.e. the Constitution of India. This is in addition to their primary role of doling out justice.
At the height of Congress rule, for instance, when the party presided over the destiny of not just the central government but state governments as well, a well known party leader once argued in Parliament that it was the right of the august house to decree that all blue-eyed babies born to Indian parents should be, say, declared stateless. However, outrageous the legislation, the fact is that it is the Parliament’s total right to pass laws, however tendentious.
Nonetheless, it is equally true that since the last seven odd decades of Independence, this absolute right of the Parliament to enact laws has been questioned. At different times, the courts have struck down innumerable pieces of legislation – the abolition of zamindari, the abolition of privy purses, the right of habeas corpus, a law to streamline judicial appointments and the right of triple talaaq, to name a few. No surprise therefore that those who enact laws spent a considerable amount of their time in determining whether their legislation will pass judicial scrutiny or not. Legality, after all is not a scientific test that should lead to a fixed conclusion but a test of how a certain body of people will view an issue. That too, in turn, is determined by the prevailing climate of opinion, conventional wisdom and even fashion.
Obviously, under the circumstances, the tricky question of ‘jurisdiction’ comes into play. In recent months and years, the question of what comes under judicial review and what should be the prerogative of the executive, has troubled the country. Labelled `judicial activism’, it is described as a situation whereby the courts are more than willing to pass orders on matters, which in an ideal world, should be passed by the executive.
Not that you can only blame the judiciary. The executive, in many cases, has totally abdicated its responsibilities, leading to a situation where all concerned parties appear to be glad to let courts take the lead. It is a not the happiest of situations to be in.
The most recent of such outrages has been the ban on sale of Diwali firecrackers, which has been welcomed by the society at large. But that is not the question at stake; what is important is to ask whether it is the job of the courts to decide whether bursting crackers on Diwali is right or not or whether holding demonstrations on Jantar Mantar is correct.
While respect of judiciary is perfectly justified, particularly in a country where other arms of democracy are probably not doing their jobs they way they should, it is equally relevant to ask whether courts should be allowed to run the affairs of the country.
Like most democracies, India has witnessed the rise of European style activists, who too have a role to play, given that there are limits to what government agencies can achieve. But this small but influential group is capable of trying to bypass local and national concerns at the drop of a hat.
While the decision of the central government to accept Rohingya refugees is a matter for a sovereign government to decide, the recent attempt to force the government to accept an influx of Rohingya refugees from Myanmar is a classic example of trying to bypass the political process and sentiments in the North East of India. In this case, an absolute commitment to humanitarian ideals has been brought face to face with democratic norms. It is also important to ask whether a small group of `enlightened’ activists can impose their value systems on larger national concerns.
Clearly, there is a larger battle of ideas being fought out in the middle. It is not a new battle and centres on different philosophies of public conduct. But safe it is to say that this battle has intensified more than ever in the last seven decades.