The Judicial Activism
Of Checks and Balances

B. Sivaraman

On the face of it, there is something unusual about it all. An ex-Prime Minister has not only been charge-sheeted in many cases but caught in a web of litigations he is waging a day-to-day battle against arrest or direct appearance in courts. The fate of a number of his erstwhile cabinet colleagues is no different. Special courts have been set up and special judges appointed for few of these cases with sensational political fallout and newspapers have opened special columns for scam update. The otherwise dormant judiciary in the country, it seems, has acquired a life of its own and come into an active role. In a land where no senior politician has ever been punished on corruption charges, even this flood of charge sheets is a novelty. Hitherto, corruption used to be one of the important issues in political battles between different bourgeois parties but it remained an unwritten convention that even the most bitter political rivals will not go beyond forming enquiry commissions to put down their defeated political opponents. Where, as in the case of Bofors, political defeat itself was considered to be enough of a punishment and the corrupt in high places took it for granted that they enjoyed an immunity from the ignominy of being dragged through the courts and getting convicted on criminal charges, the present wave of judicial activism marks a departure. Perhaps, after Allahabad High Court judgement against Indira Gandhi setting aside her election to LS, the courts are making their presence felt after a long time.

The phrase judicial activism has been coined by the media as some kind of out-of-the-way socio-political activism by the judiciary. If what otherwise should have been the normal role of the judiciary is presented as an extraordinary activist role, this is indication enough of the spinelessness of Indian bourgeoisie and its democratic institutions. But what is it that made the courts suddenly 'active'? No doubt, it is the dark popular mood. Marxists are quite familiar about the checks and balances of the bourgeois democratic state in general. But these devices get activated to a high degree only under certain conditions. The judicial activism of the past several months and the controversy over it give us interesting insights into the workings of the Indian state institutions and the crisis of the Indian polity.

The Dark Popular Mood

"Political corruption has become a focal issue agitating the minds of our people today. Leaders of almost all major parties have in recent times been involved in corruption cases or are facing accusations of gross impropriety and misuse of office. This had eroded the credibility of the entire political class resulting in cynicism and despondency among the people of India. The growing perception that all politicians are corrupt is a disturbing development threatening the very survival of parliamentary democracy" - This was an unadopted resolution moved by Priyaranjan Das Munshi, not known to be a vocal member of the dissident camp, in a CPP meeting. In the same meeting where Manmohan Singh - who had earlier dismissed the Rs.10000 crore securities scam as a `system failure' - caused a sensation as a paragon of virtue saying that the Caesar's wife should be above suspicion. One should give due credit to the pro-changers in this foremost ruling class party seeking to salvage its image, for having captured the national mood perfectly. Even the head of state, Dr.Shankar Dayal Sharma, speaking informally at a function to observe the birth centenary of Rafi Ahmad Kidwai, lamented: "At the time of his death, Kidwai was in debt which was later paid, at Nehru's instance, by the Congress party. What a contrast this is to today when you open the morning paper and read only about scams!" In the housing scandal, more than indicting the guilty politicians, Justice Kuldip Singh asked the nation to "hang its head in shame".
Indeed, the spread of corruption has been cancerous and has engulfed the whole bureaucracy. About 60 IAS and IPS officers are facing enquiry in TN and these are the people who made the ostentatious Rs.110 crore wedding possible in Jayalalitha-Sashikala household. In the animal husbandry scam in Bihar, the corruption has been so brazen that the government records show that 2000 chickens ate Rs. 5 crore of chicken feed in one year, the transport bill for cows was Rs. 35 crore in a year and one of the trucks carrying these cows traveled 18000 kms. in a single day and hundreds of crores worth of medicines meant for the cows never reached because they were ordered from companies that never existed! While the small-scale corruption to which the bourgeoisie hitherto turned a blind eye was getting generalised and accumulating into mega scams and politically eating into the vitals of the system, the massive cuts that the ministers at the centre were extracting from major deals could no longer be adjusted by the corporate houses operating in a new competitive environment as small 'service charge' overheads.

The opinion among different sections and institutions of the bourgeoisie was gradually veering around to the position that under the prevailing circumstances, something drastic is to be done to seriously pursue the cases of corruption and 'misuse of authority' by those in power to restore the credibility and legitimacy of the system. A system where the readily obliging politician, the fixer, the lobbyist, the upstart capitalist thriving on shortcuts etc. have come to rule the roost under liberalisation. The scams may be the offshoots of liberalisation but the reforms have their other side also: the big business houses and the MNCs, the World Bank and other institutions of the international capital had also turned more vocal in their demand for greater transparency in the socalled liberalised regime. It is in such a backdrop that the courts struck.

It is not that the system of checks and balances automatically spring into action in India as in an ideal bourgeois democracy. This is clear from the fact that the courts didn't take the initiative at first on their own. Nor did the investigative agencies set out to clean up the muck at the top. The discovery of the Jain diaries was a result of the arrest of Ashfak Hussain Lone, the deputy chief of the J&K terrorist group Hizbul Mujahideen. While looking into the funding of terrorist groups through hawala channels, the CBI stumbled upon the sensational Jains list which came to light through a leak to the media and the courts routinely admitted a PIL petition seeking prompt follow up. Only when Narasimha Rao tried to manipulate the case in his favour - to hit his opponents below the belt, as Vajpayee put it - the Supreme Court grabbed the chance and, instead of letting the court becoming a pawn in the nasty battle for settling personal political scores, decided to act on its own and rein in the entire political class.

The judiciary also politically timed its intervention aptly. Once the Congress defeat became a foregone conclusion the Supreme Court followed up the hawala and similar cases doggedly by establishing its own control over CBI and stepped up its pressure through the transitional period when Congress was defeated and was facing an internal crisis and a hotch-potch coalition had formed a weak government which, despite its political dependence on the Congress, cannot afford to be seen openly coming to the rescue of the culprits.

Encouraged by the overwhelmingly favourable public reaction, there was a toughening of the courts' stance. It was best expressed by the counsel for Sukh Ram, who, arguing before Special Judge Mr.Ajit Bharhioke that Sukh Ram would have been granted bail under normal circumstances, lamented that, "A new kind of jurisprudence is being written", as he was being denied the same under the prevailing circumstances. By chance coincidence or by design, two or three layers of lower courts including the crucial trial court were soon caught in the maelstrom of judicial populism and euphoria unleashed by the judicial activism of the apex court. What followed was a concerted offensive by these courts, with the Patna High Court hearing the AH case also joining in.

Once the new space for judicial lobbying opened up there was no dearth of PIL petitions and there were several system-saviour lobbies and bourgeois uplifters who came forward. If the system spawns Amir Bhais and Chandraswamis it also creates space for Rajinder Puris and Vineet Narayans etc. - apparently non-political figures without any political axe to grind, just representatives of the supposedly clean, hard-working and honestly tax-paying middle class. The role of the media was also decisive. The politicians feared the 'trial by media' more than the trial by courts proper. An exasperated Laloo even said that the High Court and CBI should make way and hand over the probe into the AH scam to the press.

Courts Vs. CBI

That the Supreme Court (SC) had taken the hawala and other such cases seriously was soon evident. It upheld a petition that CBI should be taken out of the control of the executive, especially the PMO, when the then PM himself might have to face investigation and assumed control of CBI, in respect of these cases, and asked it to directly report to the Court. It started closely monitoring the investigation itself. The CBI was also asked to investigate the involvement of Rao himself and the SC, to make its position clear, came up with the observation, "Be you ever so high, the law is above you". It came as a revelation for all those aware of the hitherto low profile role of the courts. The CBI however, under the orders of political masters, resorted to all sorts of delaying tactics and stonewalled the pressures from the Court. At first, it dragged its feet in preparing the cases, tried to keep the names of political leaders out of them and then tampered with the evidence. But the SC was not to be duped in this manner and it started an attrition with the investigating agency and the manipulators behind it.

Courts, through their observations and strictures, didn't hesitate to create the impression that CBI itself was at the cover up job. In fact, this is precisely what the UF government attempted for the sake of continued support from Congress despite the fact that all the major parties of UF had promised to take CBI out of executive control in their manifestoes. When Joginder Singh was brought in as the director, the investigating teams looking into all these politically sensitive cases were promptly reshuffled. The courts' displeasure at the delay in the investigations were also used as a pretext for this. In St Kitts case, the SC Bench observed that if it is found this kind of sluggishness continued, it might be constrained to observe that the Director (of the CBI) was not equal to the task. In the JMM case the CBI tried to prolong the investigation by changing the team without taking court's permission and the Court took the unprecedented step of forming a new team altogether which too was asked to report directly to the Court. In the same case, the Delhi High Court minced no words in passing strictures: "We have started developing doubts on various aspects...We have seen the line of action and we have seen the file. Certain things they (the new CBI team) want to go into may be overlapping. They may not get anywhere. We are not satisfied with the line of action." The Patna High Court condemned the CBI Director for `interfering in the investigation' when he tried to spike the report of the Joint Director which contained the names of political bigwigs and which was to be submitted to the Court. The same Director was pulled up earlier by the SC for `hobnobbing' with those under investigation when he visited Rao's house after a function to `seek guidance'.

All these made a terrific impression on the middle classes who were earlier enamoured of the TN Seshan's crusade. They were jubilant that the checks and balances of the parliamentary democracy are at last beginning to work. India is going the Italy's way, they rejoiced. But the entire political class panicked. "What began as a welcome clean-up of a corrupt political system is turning into a populist attack on the executive branch of the government" - their representatives in the media started screaming. Soon the judicial activism became a subject of major controversy.

Executive Vs. Judiciary

In the debate over judicial activism raging among the bourgeois intelligentsia, one conservative view is that the constitutional institutions like the executive, legislature and judiciary are separate but sacrosanct wings of the state and any trespass by any one of these wings into another's region of activity is a threat to the democratic functioning of the polity. Whether the courts can go after a few crooks who manned some of the key executive posts or not - this is the crux of the issue which is sought to be obscured by painting the whole thing as a constitutional crisis, a battle between executive and judiciary, or as judiciary's obstructionism coming in the way of executive's functioning. Moreover, these constitutional institutions are not at war among themselves just for their own sake. In the final analysis, the legislature and the judiciary act as checks and balances to each other as well as to the executive only as dictated by the overall class interests of the ruling classes. In other words, it is only the crisis of the ruling classes which reflect as the contradiction between the judiciary and the executive.

Hence, Jaipal Reddy, who resigned as the spokesman of JD, was quite off the mark when he took umbrage at what he called as 'judicial expansionism'. Even Jyoti Basu expressed the same kind of ambivalence: "Corruption has become a bane of Indian politics. It is almost becoming a way of life"... "It is time that political parties themselves came up with self-regulating measures to check political corruption, and those in government have to set the example. This failure has led to judicial intervention which is not proper". Upon second thoughts he added however, "I am grateful to the judiciary for pulling up the guilty" (The Hindu, Sept. 30, 1996). The courts are expounding the bourgeois principles more clearly than these political leaders. The SC Bench hearing the JMM MPs' payoff case observed: "In a democracy no other case could be more serious than the one alleging that Members of Parliament could be bribed for their votes... It is much more serious than a murder case." The courts are only upholding the bourgeois principle of rule of law and, as often repeated, the law is only taking the course which it ought to take, and unable to recognise this the Marxist Chief Minister is uncomfortable at the 'improper' conduct of the courts for which he is 'grateful' however!

Why get jerky with the minimal assertion of the courts? After all, only some leading politicians have been charge sheeted and no one has been sent to prison yet as in Japan or Italy or hanged as in South Korea or Pakistan for misuse of power. What has been achieved so far is minimal. Nor can one expect much from the courts. The courts are not going to bring about any revolution in the governance. Though the SC is pressurising the government to come up with an appropriate structure for autonomous functioning of CBI - within the framework of the existing law - which would insulate it from political interference, no far-reaching institutional changes have been made to check corruption or misuse of power in high places or to ensure autonomy of the investigating agencies.

Still the question why metropolitan magistrates and high court judges have summoned unusual courage to bring the high and mighty to trial remain unexplained. Are they possessed by the 'Seshan effect' and have come to realise their own powers and exercise them while sharing the general middle class disillusionment? Or, is it that what we see is a fall out of the communalisation of the judiciary in tandem with the communalisation of the middle classes as is being hinted by pro-Congress circles? Both elements may be there but the best explanation has come from none other than Rao himself who said, "When the government becomes feeble, a few magistrates become bold".

Congress and UF Stonewalling

True, Rao's strategy of using the courts to finish off his rivals and competitors has more than misfired. If hawala case has exposed the seamy side of liberalisation which is the sole credit of Congress, JMM MPs payoff case has challenged the very legitimacy of this party completing a full term in office and the St Kitts and Pickle King cases have dragged the leader's own personal reputation through the mud. The judicial missiles were far more devastating than the electoral reverses. The startled Congressmen could not believe their eyes that a leader who had been the prime minister of the country for five long years could be charge sheeted and summoned on such charges which they condemned as frivolous. Recovering from their panic they soon launched a counter offensive against judicial activism. The Congress started openly blackmailing the courts that if Rao is asked to appear before the courts thousands of Congressmen would throng the courts.

Contrary to the impression that Indrajit Gupta is trying to create with his socalled 'controversial' statements that the UF government is out to get Rao, they were in fact involved in a cover up job and were being threatened by Congress for not being good at it. A counsel for CBI resigned in protest when orders came from above that the bail plea of Rao should not be contested. Pressure was mounted on the courts by the UF government for a change of venue of the hearing for 'security' reasons. In a blatant attempt at pitting legislature against judiciary, several Congress MPs started demanding a special session of the parliament to discuss judicial activism, a demand which found support from within UF also. The Congressman PA Sangma, who is the Lok Sabha Speaker, came out against judicial activism. The Prime Minister himself had a controversial meeting with the Chief Justice of the Supreme Court at odd hours. By strange coincidence, the heat was off and Rao got a reprieve. The 'checks and balances' were seen to be working both ways.

The Political Class

The silence of the top BJP leadership on judicial activism was conspicuous. The political class closed in its ranks in a rare show of solidarity. Speaking for the entire political class, Arun Nehru, one of the key fund raisers for Rajiv Gandhi before he fell out with him and then for Mr.Clean VP Singh, thinks aloud in a media column: "...if Sukh Ram gets the wrong treatment then he will name others. Mr.Sukh Ram was one of the five who contributed party funds and giving time and dates will be easy if the party does not help - and the party helping directly or by the coalition partner will be politically suicidal. Mr.Sukh Ram had also dealt with the top 20 houses in the country and I feel that a detailed probe will implicate them and they can implicate every party and every leader...there are no innocents and every party has been flouting the rules and everyone will be implicated as no one has the guts to change the system and make political funding a transparent exercise.

"All parties are wounded and those who are left out will be speedily implicated. Everyone has been operating under the same system and intensive research is on by those implicated...The political arena is full of wounded gladiators and the list is increasing everyday. The question today is not whether you are innocent or guilty - that takes a decade to decide. Look at the `hawala' case: all that is necessary is to issue an FIR and a charge sheet. In short, all you have to do is to point a finger and you can ground the `good and the bad' together". Here is frank sermonising that the political parties should not stretch their bi-partisan quarrels too far, an open scare-mongering regarding the ramifications of the judicial activism for the business-politics nexus and a clear advocacy for political reforms to legitimise that nexus. He also had another sound piece of advice to offer: "All (politicians) concerned...can expect a 10-year banishment unless they adopt the correct legal posture that all are innocent till proved guilty and hold public positions. Moral posturing in a system of delays is suicidal and Mr.Advani's decision by hindsight was wrong". Incidentally, Mr.Nehru was one of the accused in the hawala case.

Under tremendous pressure to put in place some institutional mechanism that will act as internal check, the Lok Pal Bill has been introduced in the parliament. It is said that charges under Prevention of Corruption Act, 1988 - including those levelled against the Prime Minister - would henceforth be referred to Lok Pal. But the catch is that unlike the hearing in the court the proceedings of Lok Pal cannot be reported in the press and that is why corrupt politicians might even prefer Lok Pal to courts.

The liberals are under the delusion that politics would be purer if a few corrupt politicians are brought to book and the executive is made more accountable. And they have pinned all their hopes on the courts. Well, whatever reforms the courts introduce are quite welcome. But the illusions that the liberals spread about the courts not only cover up the class character and limitations of the courts but also the fact that the courts are also very much part and parcel of the very rotten system. Millions of cases are pending in courts and the inordinate delay makes a mockery of the legal system. If the land reform measures in various states are frustrated by vested interests much of the responsibility lies with the courts. The lower courts work hand in glove with the oppressive police machinery and collude in implicating lakhs of activists of democratic movements under all sorts of trumped up charges and act arbitrarily in refusing bail and tens of thousands of undertrials are languishing in jails for years in endless wait for trial, but only when some VIPs and VVIPs were meted out similar treatment there was a furore. The SC admitted a petition by Rao challenging the constitutional validity of the powers of the magistrate to proceed against a person without substantial grounds under Section 319 of Cr.P.C. On the other hand, it took 11 long years to frame charges against those arrested in connection with massacres of Sikhs in November 1984 riots. Even in the St Kitts forgery case the CBI began its probe in early 1990 and filed FIR in May that year which curiously omitted the name of PVN because VP Singh who was prime minister by then was not keen on pursuing the case against him though his involvement was common knowledge. Yet Rao could be charge-sheeted only in September 1996.

The double standards of the courts is evident on many other issues. The Sangh Parivar reduced the apex court to impotence on Ayodhya not only throwing a frontal challenge to constitution but also tearing up the very social fabric but we never witnessed any judicial activism against this; rather, the SC even gave a clean chit to Hindutva propaganda in elections. It is a mystery why court remained impotent on so many other scandals? Say, over Harshad Mehta scam? It was only after the SC cleared the policy of telecom privatisation scotching the public debate in parliament and outside, Sukh Rams had their field day. The courts were not able to get the state governments to enforce its order on effluent treatment and pollution control measures over industries but after nearly a decade, abruptly ordered closures unmindful of the threat to the livelihood of the workers. Perhaps, the courts are more aware of their limitations than some starry-eyed liberals in the media about their own limitations. That is why when an overzealous judge admitted a PIL on dengue epidemics the Chief Justice of the Delhi High Court promptly pulled her up, reminding one and all that judicial activism is no panacea.