Doctor, heal thyself

In his direct but non-confrontational manner, the Prime Minister has told a conference of chief ministers and chief justices of High Courts that the judiciary must stick to its knitting. "The judiciary, executive and legislature ... must respect the roles and functions of the other. Powers accorded to each organ must be exercised cautiously," Dr Singh said. The context is of course the tension caused by a judiciary that is seen by the executive and the legislatures as encroaching on their turf. The Prime Minister went to say that if the executive was perceived to be falling down on the job, the writ of mandamus ("do your duty") was always available to the judges. "Compelling action by authorities through the power of mandamus is an inherent power vested in the judiciary... substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach ..." A few days earlier, a respected former chief justice of the Supreme Court made the same point in a speech in Jabalpur. However, the current chief justice of India has said that such "tension" as is created by judicial review is "natural" and indeed "desirable".

Who is right? Everyone is, because in the final analysis it is a matter of good judgement which, in the context of the major institutions of governance, tends to evolve slowly. After all, the first important instance was in 1618, when Sir Edward Coke, then Chief Justice of England, fought to uphold the common law. He was first cautioned and then removed from his post. His opponents were the church, the aristocracy and the king, all of whom had a vested interest in not seeing justice done. In today's parlance, Coke would have been held guilty of "judicial activism", a term invented by the recently deceased Arthur Schlesinger Jr in 1947. He used it to describe those judges of the US Supreme Court who, in delivering a judgment, would go beyond the letter of the law and take into account public policy issues, if not also public preferences. Activist judges have been excoriated or hailed, depending on the point of view. As has been pointed out by several eminent scholars, judicial activism is mostly about equity here justice is defined rather broadly to extend the scope of laws that reflect old power structures. Judicial conservatism, in contrast, is largely about narrowly defined justice. Since power structures do change and new interest groups emerge, it is inevitable that judicial activism will surface occasionally.

Indeed, that is what happened in India in the late 1960s and early 1970s, when Indira Gandhi coined the phrase "committed judiciary". The commitment was ostensibly to social and economic justice, whereas in practice it was to her government and its point of view. In more recent years, the issue has usually been the failure of the executive to do its job, and judges have tended to step into the vacuum created by executive failure and even abdication. The Prime Minister's advice is that invoking mandamus is a better alternative, which it certainly is. However, judges have been encouraged to overstep the line largely because they have public sanction; impatience and frustration with the quality of governance have reached levels where all too often people look to the judiciary for help. That does not make it good in principle. However, the Prime Minister should be aware that the original sin has been committed by the executive. Even as he cautions the judiciary, he should focus attention on making the executive do its job. There will then be no call for judges to overstep the line.