How, and why, the referee turned into a player Justice Shrikrishna explains judicial activism

When three of the four shoulders carrying a palanquin do not apply themselves, the weight falls on the fourth. If the fourth entity also shrugs off its responsibility, then the palanquin is sure to fall.

“The palanquin is our Constitution, our Indian polity – and if the strongest of the four (viz., the judiciary) refuses to shoulder the burden, it will certainly fall, and that will be the end of our country…

“Let us hope that with the kind of dynamism that our judges have displayed, we will continue along the right channel and will one day see the country rising to the heaven of freedom that Rabindranath Tagore sang of in his Geetanjali.”

Mr. Justice B.N. Shrikrishna, the “opening” speaker for the Rotary year 2007/08, made these biting comments at the last meeting while speaking on “The role of the judiciary in contemporary society”.

Without referring to the rather acrimonious debate in which an allegedly “activist” judiciary is being pilloried for “exceeding” its limits, he patiently explained how and why judges were forced to go beyond their traditional role as referees or it was necessary and that it affected one’s life.

Two bitterly-fought World Wars had convinced all right-thinking nations and people that war was not a solution and that conflict resolution could not be achieved by overpowering another person. That led to the creation, first, of the League of Nations, and then of the United Nations.

Thereafter, a number of international conventions, political documents and so on were signed – these recognised that every human being was born free, was entitled to live as a free person and “to die at his choice as a free citizen” of some State or other.

“It is this liberty which is the bedrock of all other freedoms. It is this liberty which needs to be guarded as a cherished value in life, at the cost of everything else. It is this lib-this is what we see in our day-today life.”

Mr. Justice Shrikrishna said conflict resolution could be achieved by resort either to arms or to an exchange of ideas and thoughts. But in the case of intractable human beings it was necessary to have a third person who would hear both sides and suggest a rational solution.

Thus, the role of the judge in society was that of an impartial arbiter, one not given to voting in favour of one or the other party because of any consideration other than the pure merits of the dispute. “Traditionally, this was the only role that judges played, viz., that of a referee or an umpire in a cricket match.”

However, the conditions in India warranted a “flexing” of muscles and more elbow-room for the judges to assume some other roles.

Judges are virtually forced to crack the whip

The Sanskrit axiom “Saa vidyaa yaa vimuktaye”, meaning “That is knowledge which frees you, which gives you freedom”, remained engraved on a plaque outside Mumbai University.

The moot question was, “Freedom from what?” The answer: “Freedom from want; freedom from hatred; freedom from hunger; and freedom from every devastating evil influence that a human being is subject to. This is necessary to ensure that society is on an even keel, that there are no fissiparous tendencies generated in society.”

Such a situation was difficult to achieve in a country like India with its low level of literacy, its widespread ignorance and pervasive poverty.

There was no point telling the poor man sleeping outside the Taj Mahal Hotel at night (hoping that no drunk Romeo would run over him in his Mercedes), that the liberals of Europe and England had taught the world that liberty was a very precious commodity; or that the American Constitution sang paeans to liberty.

All that mattered to him was half a chappati, or one chappati if he could manage it, and a roof over his head. How could one ensure this for him?

Unfortunately, Mr. Justice Shrikrishna said, although the Indian becoming more prosperous.

The Executive, which was supposed to be the steel framework of the bureaucracy (as Sardar Patel once described it), “became bent and started kowtowing to the political masters” and ensuring that their private agenda was fulfilled. And the vast, teeming majority, which was crying for relief, was left behind.

It was at this juncture that the judges had to willy-nilly take on the role of cracking the whip so that the other two slumbering organs of the Constitution performed the role that it had ascribed to them. ìMind you, the judges had no business to do it because, frankly, their job is to blow the whistle when somebody commits a foul.

As a result of the paralysis that affected the Legislature, charged with the duty of making legislation, and the Executive, which had the duty of implementing legislations in accordance with the policy laid down by the Legislature, the third organ perforce had to take on the additional burden of keeping the other two in check within Constitutional bounds.

Mr. Justice Shrikrishna pointed out that the duty and the right of deciding which action was consistent with and which one violated the always post facto; somebody commits a crime, comes to court, and I say whether he’s guilty or not; somebody files a suit on a cause, only then do I decide whether the cause is good or not.”

In other words, the judge had to decide in advance and tell the persons concerned, “You are not doing something that needs to be done under the Constitution. Do it”.

The Supreme Court ëfunnelsí even yet-to-be-legislated rights into the Constitution, says Justice Shrikrishna

The judge would then issue a mandamus and exercise the extraordinary power known as Writ Jurisdiction, which had been exercised in numerous ways.

Elaborating, Mr. Justice Shrikrishna said that Part III of the Constitution enumerated the fundamental rights of citizens and non-citizens. And Article 21 guaranteed to everyone the right to freedom of life and liberty.

But the judges asked, “Everyone is free to live, but free to live in what manner? Does ‘free to live’ mean a mere animal existence? Or does it mean living in a manner consistent with human dignity?” Once this question cropped up, then it had to be read along with the next part of the Constitution, viz., Part IV.

Part IV stated that “the State shall govern in such a manner so as to bring in socialism to the citizens, to ensure that there is equal distribution of wealth in the country, that there is no poverty, there is education”, and a host of other things.

On reading these together, as a synthesis, one came to the conclusion that if the State had failed to carry out its governance in accordance with the mandate in Part IV of the Constitution, then the State could be told, by exercise of the extraordinary power called Writ Jurisdiction, ìWhy are you not doing this? This needs to be doneî.

Initially, it was supposed to be just a polite note of caution. “But polite terms work only on Rotarians, not on everybody in the country.”

So when polite notes did not work, judges had to lay down a decree in terms of a big danda (threat), saying, “You jolly well do it, or else…” Judges also had to make liberal use of their contempt powers – and these made them hated persons.

The story did not end here, Mr. Justice Shrikrishna said. The judges noted that the Supreme Court was empowered (in conjunction with certain extraordinary powers under Articles 136, 137, 141 and 142) to issue appropriate writs, orders or directions in order to do complete justice in any given matter before it.

But there was an obstacle. The traditional role of a judge was to wait for somebody to knock on the door, to open the door, listen to the person, find the other offending party and adjudicate between them. ìHowever, what if the party doesnít know that he has a right? The poor man who sleeps on the footpath at night doesnít know that he has some fundamental rights.

Earlier, in such a situation there was the doctrine of locus standi, “the Latin term invented by lawyers and judges to confuse people”. It demanded to know what right (or justification) one had to approach the court. If one had a right, then one would be heard and an order passed. If not, one was told to go away.

Had this rule been applied as strictly as it was in England, then none of the teeming masses of India would get anything from the courts, because no one knew their rights, no one knew how they had been wronged, nor did they know how to right the wrong.

Therefore, the judges decided not to dwell too much on locus standi. If anybody had suffered an injustice that was offensive under the Constitution and even if any other person brought it to their knowledge (whether by way of a media report or a letter to the judge), then it would be looked into and investigated, to find out whether injustice had been done to the poor man who could not articulate it himself, and then to give redress to him.

This gave rise to what came to be pejoratively called the “epistolatory” jurisdiction of the Supreme Court. What this meant was writing an epistle to the judge and the judge issuing an order; if somebody in Bombay was sleeping on the footpath with no roof over his head, a notice could be issued to the Chief Minister or the Chief Secretary to do whatever was necessary.

Mr. Justice Shrikrishna admitted that this had resulted in both good and bad things. But keeping aside the bad for the nonce, he focused on the good that “epistolatory” jurisdiction had wrought.

Bonded labour

Even though the Constitution stated that all citizens were free, there were many in perpetual bondage. Someone complained the Supreme Court (SC) through a letter. The SC jumped into the fray, appointed an “officer of the court” and some “socially-minded lawyers”. This team travelled to faroff places, investigated the case and made a report.

On learning of the truth in the allegation, the SC issued appropriate directions to State governments, ordering the release of the bonded labourers forthwith.

Hunger in Kalahandi

Despite a severe drought and acute hunger in Kalahandi (Orissa), the State government did not act. On receiving a letter about some starvation deaths, the SC said this was a breach of Article 21 (the right to life and the right to live with dignity) and ordered the government to start employment programmes for the poor – with the compulsory requirement of providing them with food grains.

Epidemics

In matters of health, when epidemics broke out and the authorities were lax, the judges intervened and ordered immediate succour to the affected people.

An American Supreme Court judge hears ten cases a year, an Indian judge disposes of at least 2,500 by judgment

CNG in Delhi

Mr. Justice Shrikrishna pointed out that those who visited Delhi after a 15 or 20-year gap, appreciated the cleaner air and far lower air pollution. This had come about because the Court had come down heavily on transporters and pollution-spewing lorries, rickshaws and so on. They were told that their vehicles would have to match the prescribed (Bharat I, II, III) standards or be taken off the roads. Vehicles running on CNG had now become the norm.

Sealing in Delhi

This was one of the latest cases where the Court intervened in a matter where there was rank, large-scale violation of the zoning regulations and flouting of the city’s Master Plan by everybody – from the top to the bottom. The only answer was the SC which said that even if it was necessary to pull down a building, it would have to be done in order to ensure that the rule of law was maintained.

Mr. Justice Shrikrishna went on to say that Article 21 was used by the Supreme Court with a “funnelling effect”. Explaining the term, he said human rights were inalienable–they were not a gift, grant, or bequest from the State that could be withdrawn at any time. “They are born with the humans and come to an end only with the life of the human being.”

Now, there were a number of international treaties recognising huhad already incorporated those ideals. Thanks to this, there was the following famous case:

The Vishaka case

This was the case against sexual harassment. “There is an international convention against violence against women. Sexual harassment at the workplace was a known thing in the developed countries and there were legislations dealing with it. But in our country there was hardly anything, and even today Parliament has not legislated.”

When the case came up, the Supreme Court said, “Very well. Article 21 means the right to life. And what is the right to life for a woman? It is the right to life and the right to work with dignity. This dignity is taken away if somebody acts as a predator, interferes with her or treats her as an object of sexual pleasure”.

This was what made the Vishaka case more prominent. But it was just one example. A study of Supreme Court judgments of the last 25 years would show that wherever there was an absence of a recognised principle by way of a statute, the Court imported it from international benchmarks of conventions, treaties and political documents and read them into Article 21, saying, “Article 21 includes these rights and tries to enforce them”, Justice Shrikrishna said.

Human Rights

Before 1993, India did not have an act recognising human rights. All such rights were enforced by reason of the Writ Jurisdiction of the High Courts and of the Supreme Court. It was only subsequently that the Human Rights Act came into being and the Human Rights Commissions at the Central and the State levels, most of which were defunct and moribund, started functioning.

“One of the things that is indicated therein, is that anything that is enforced by a court in exercise of its Writ Jurisdiction by recognising international treaty obligations, is a human right.

“It is these rights of which the vast populace was ignorant; the vast populace was inarticulate about these wrongs – these have been recognised by the judges and by society and the judges have played a remarkably ameliorative role in treating at least a large number of situations like this and remedying them.”

Mr. Justice Shrikrishna referred to the debate between politicians and lawyers on whether the role played by judges was a legitimate one or an illegitimate one and said that there was much that could be said on both sides. But the defence of this role had always been just one ñ the one about the four bearers of a palanquin and three of them not putting their shoulder to the task.

“When three of the four shoulders carrying a palanquin do not apply themselves, the weight falls on the fourth. If the fourth entity also shrugs off its responsibility, then the palanquin is sure to fall.

“The palanquin is our Constitution, our Indian polity – and if the strongest of the four (viz., the judiciary) refuses to shoulder the burden, it will certainly fall, and that will be the end of our country…

Answering questions at the conclusion of his talk, he said advanced countries like the US, the UK and Singapore had a judge-to-population ratio of 50 per million, but India only had 5.5 judges per million population. As a judge of the Supreme Court, he had to read 170 cases a week for admission! “That, literally and figuratively, broke my back.”

When a delegation of American Supreme Court judges “came to teach us how to manage case loads” in the courts, Mr. Justice Shrikrishna said, he asked a visiting woman judge (much to the chagrin of the Chief Justice), “How many cases do you do in a year?” She said, “Well, about 150 cases, most of which are decided by circulation, about ten matters we hear in court”.

To which he replied, “Ma’am, my minimum number is 2,500 cases which I write and dispose of by judgment, now what case mana gement are you going to teach me?”

Earlier, introducing Mr. Justice Shrikrishna, PP Haresh Jagtiani said his most extraordinary contribution to law and justice was as the head of a fact-finding commission of inquiry called the “Shrikrishna Commission” appointed to probe the Mumbai riots of 1992 and 1993.

Soli Cooper proposed the vote of thanks.

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