M J Antony: The split within

OUT OF COURT

A recent Supreme Court judgement finds judges differing on judicial activism.

The extensive use of judicial power in recent times has provoked intensive debate in Parliament and in the media. The controversy which went on outside the courts so far saw a new twist a few weeks ago when two judges of the Supreme Court wrote opinions for and against judicial interference in executive matters. In State of UP vs Jeet Bisht, one judge saw the phenomenon as a "widespread malady which has infected the judicial system, namely, the tendency in some courts of not exercising judicial restraint and crossing their limits by encroaching into the legislative or executive domain, contrary to the broad separation of powers envisaged in our Constitution". Critics of judicial activism could not have put it better than this judge, Justice Markandey Katju.

However, his brother judge on the same bench hearing the same case, Justice S B Sinha, made a strong defence in favour of judicial activism. He said: "Although the drafting of legislation and its implementation, by and large, are functions of the legislature and the executive respectively, it is too late in the day to say that the constitutional court's role in that behalf is non-existent. The judge-made law is now well recognised throughout the world. If one is to put the doctrine of separation of power to such a rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through an interpretative process."

According to him, the traditional role of the courts was to check governmental excesses and violations. However, this checks-and-balances task has been found inadequate these days. "In today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, and private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction," his judgement explained.

The case involved the poor infrastructure of the consumer forums in the country, non-appointment of members of the forums and their unsatisfactory service conditions. It all started when a citizen moved the Chamoli district consumer forum complaining that his electricity bill was excessive. However, the government had not appointed members of the forum that would have heard his complaint. Therefore, he moved the Allahabad high court. It passed an elaborate order asking the state government to set up at least five state consumer commissions by making necessary amendments in the Consumer Protection Act. It also passed several directions on the infrastructure of the forums and recruitment and service conditions of the staff of the forums.

The state government appealed to the Supreme Court against these orders, challenging the powers of the high court to pass such directions. While hearing the appeal, the Supreme Court passed even more detailed orders to make the forums "effective institutions" to help the consumers. They touched upon various aspects of the problem, like state funding of the consumer forums and service conditions of the judges and members of the forums. Moreover, the Supreme Court expanded the scope of the case from Chamoli to the whole country.

This became the point of controversy among the judges. The setting up of the consumer forums itself was brought about by a public interest litigation in the 1980s. The central government passed the Consumer Protection Act in 1986, but did little to implement it. The forums were only on paper, just as the family courts are at present. It was through the persistent efforts of a public interest organisation, Common Cause, that the Supreme Court was persuaded to direct the state governments to set up the forums in every district. The executive required quite a bit of prodding from the judiciary to do the job. There were no dissenting voices within the judiciary then. However, the second round of cases concerning consumer forums appears to have split the judiciary itself.

The birth of the public interest litigation (in the '70s) itself was not free from dissent within the apex judiciary. One judge then dismissed a PIL derisively, remarking that the Supreme Court had no time for "pills and tablets". When a noted jurist moved the Supreme Court on behalf of prostitutes resettled in an Agra home (Upendra Baxi vs State of UP), one bench passed directions to provide a sufficient number of toilets, fans, beds and even a radio. A brother-judge made a public speech in Delhi, ridiculing the order, stating that the administration of the women's home was being run from the Supreme Court. Another strict constructionist judge hearing a PIL based on a news report brought ten questions casting doubts on the very basis of such litigation, then novel. After a decade of progress in the PIL movement, the court decided that those questions need not be answered at all.

There was one incident in which one judge walked out of the court after openly exchanging words with his activist brother-judge. But the caravan went on.