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Mainstream, VOL XLIX No 31, July 23, 2011

The New Face of Judicial Activism

Monday 25 July 2011, by Arup Kumar Sen

In writing the history of judicial activism in India at the beginning of the 21st century, Prof S.P Sathe noted that the political establishment has used the Court to legitimise its own decisions. He noted in this context that the Gujarat Government moved a contempt petition against the Narmada Bachao Andolon (NBA)
for its members’ threat to die with the villagers whose villages were going to be submerged because of the rise in the height of the Sardar Sarovar Dam. Actually, the decision of the Supreme Court which came after seven years “poured cold water on the hopes of the NBA activists”. The Court trusted all the affidavits filed by the governments regarding rehabilitation and permitted them to raise the height of the dam. The NBA activists criticised the decision of the Supreme Court. They made public demonstrations and held dharnas in front of the Court to express their protests. Criticism by eminent NBA activists, Medha Patkar and Arundhati Roy, was also cited as an instance of contempt of Court.1 In her communication to the Supreme Court, Medha made the following insightful statement:

The NBA always wanted the judges to visit the valley and see the condition of the oustees themselves, but that did not happen. So the people of the valley decided to come to the Court to meet the judges and explain to them what was happening in the valley. If such an attempt to influence the judges in this way is considered contempt by this Court, then I plead guilty.2

In his discourse on judicial activism, Sathe raised a fundamental question of judicial accountability and gave his own answer from a moral standpoint:
The answer, according to me, is that a constitutional Court has to continuously strive to sustain its own social legitimacy. Through impartial and principled decisions, it sustains people’s faith in it. The accountability is also sustained through the Court’s concern for the poor, the disadvantaged and powerless minorities.3

SOME of the very recent judgments of the Supreme Court reported in the media testify that popular movements and human right activism have had an impact on our judicial system. On July 5, the Supreme Court restrained the Chhattisgarh Government and the Centre from arming Special Police Officers (SPOs), calling the force as “unconstitutional”. A Bench of the Court gave this order on a petition filed by sociologist Nandini Sundar, historian Ramchandra Guha and others. The petition sought a direction to the State Government to refrain from allegedly supporting Salwa Judum comprising about 5000 tribal youths, who helped the police and security forces in the Bastar region in the fight against Maoists. The Court asked the Chhattisgarh Government and the Centre to desist from appointing the tribals as SPOs and from arming them for countering the Maoists. It may be stated in this connection that on January 14, the Supreme Court sought answers from the Union and Andhra Pradesh governments to a petition filed by Swami Agnivesh and the widow of Hemchandra Pandey, a journalist killed along with the Maoist leader, Azad. The petitioners wanted a judicial probe to the incident citing post-mortem reports of Azad and Pandey, which contradicted the ‘encounter’ claim of the Andhra Pradesh Police and showed that they were shot from close range. The Bench of the Supreme Court said:

We cannot allow the republic killing its own children. The governments will have to answer many questions. We hope there will be good and convincing answers.

The anti-land-acquisition movements in Singur and Nandigram played an important role in changing the political regime in West Bengal. Immediately after coming to power, the Mamata Banerjee-led government passed the Singur Land Development and Rehabilitation Bill, 2011 to return land to the ‘unwilling owners’. The Tata Motors moved a petition in the Calcutta High Court pleading that the Act and all its consequences be declared “unconstitutional, illegal, invalid and bad in law and therefore void”. The High Court refused to pass an interim order after the petitioner prayed for an injunction restraining the State Government from acting in terms of the Act and interfering with the possession of the land. The Tata Motors moved the Supreme Court after the High Court refused to give them any interim relief. The Supreme Court restrained the Bengal Government from returning land to the ‘unwilling owners’. The Bench of the Court, however, made it clear that its order (of June 29) was an interim arrangement and should not be construed as its opinion on the merits of the case. The Bench asked the High Court to decide the Tata Group’s petition challenging the new Act within a month.

It should be mentioned in this connection that in a very recent judgment (on June 28), the Apex Court criticised the Uttar Pradesh Government for acquiring prime agricultural land to build luxurious flats in Greater Noida and questioned the invoking of an urgent clause that bars farmers from raising objections. The Court noted that it would step in to prevent “more Nandigrams”. On July 5, during the hearing of the case, the Supreme Court said that the Sate was the biggest land-grabber, depriving farmers of their livelihood for generations. Terming Mayawati’s land acquisition policy as ‘anti-people’, the Court slammed the authorities for taking advantage of the colonial law on land acquisition to divest farmers from their prime agricultural land, benefiting the rich and paying “pittance” to common men. The Court noted in this context that a “sinister campaign” had been launched by various State governments for taking away the land of poor people and giving it to builders. A day after it accused States of running a sinister campaign to grab the land of poor farmers, the Supreme Court dealt a big blow
to the Mayawati Government on July 6 by quashing a 2007 notification to acquire 157 hectares of land in Greater Noida. The Bench of the Court also imposed a Rs 10 lakh fine on the Greater Noida Industrial Development Authority (GNIDA), saying that it allotted the land to some builders even before getting approval from the State Government for changing the land usage from industrial to residential purposes. The Court directed it to return the land to its original owners.

One can argue that the recent pro-people judgments of the Supreme Court strengthen the aspirations of the Congress Government in power to win the support of the rural electorate. But, it cannot be denied that the judiciary in India is being forced to listen to the voices of the popular and human rights movements “to sustain its own social legitimacy”.

NOTES

1. S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, New Delhi, 2002.

2. Ibid.

3.Quoted in ibid.

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