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Mainstream, Vol XLV, No 50

Nuances of Change in the Indian Judicial Paradigm

Monday 3 December 2007, by Amna Mirza


Indian Judiciary and Politics: The Changing Landscape edited by B.D. Dua, M.P. Singh, Rekha Saxena; published by Manohar Publishers and Distributors, New Delhi; price: Rs 1195.

The judiciary has become an over-arching public institution in the Indian political domain since the post-Emergency phase. The space vacated by the inefficiency, gigantic corruption, maladministration, lack of political will of the executive and legislature is being taken over by the judiciary. From judicial activism in the Golaknath case (1967), to judicial restraint propounded by the ‘Basic Structure’ doctrine in the Keshavananda case (1973), to the present scenario where we find a plethora of Public Interest Litigations (PILs), there have been both critics as well as supporters of the role of judiciary. The supporters argue that the judges are performing their role of preserving the sancticity of the Constitution from being eroded by the executive and legislature. The opposite camp accuses the judges of transgressing their limits and undermining the scheme of division of powers, and indulging in populism.

In the context of this heated debate, we find an interesting book Indian Judiciary and Politics—The Changing Landscape. It is a good compilation of contributions by well-known scholars, lawyers, academics. The scope of topics covered is vast, which includes judicial activism, judiciary and ecology, secularism, parliamentary institutions, central executive, judicial reforms.

Douglas Verney gives a good comparative insight into judicial review in the Anglo-American and Commonwealth trdaitions and finds these in tandem with the principles of liberal democracy. Rajiv Dhawan captures the genealogy of evolution of the judiciary’s changing role since the 1950s and feels that the present-day government is transforming from being ‘executive-driven’ to ‘judiciary-driven’. Prashant Bhushan critically analyses the role of PILs under the neo-liberal regime and dissects those court verdicts neglecting the plight of the poor and the vulnerable.

PART II of the book consists of articles on judiciary and ecology. Subhendu Rajan Roy focuses on the role of the Supreme Court in enforcing CNG in Delhi, John. R. Wood draws attention on how the courts set precedent in the Narmada river dam controversy by not allowing PILs to degenerate into catering to vested interests.

India is a multi-religious society and healthy coexistence of different religions would need an impartial arbitrator if disputes arise over plurality in beliefs. C.P. Bhambri applauds the Indian judiciary for maintaining the secular fabric of the polity by its involvement in the Best Bakery, Babri Masjid demolition cases. This could be seen as nullifying the effects of Right-wing conservative onslaught.

M.P. Singh points to a big lacuna in our parliamentary system and highlights a case for codification of parliamentary privileges subject to judicial review. B.D. Dua captures the increase in judicial powers due to transition from a single- party system to the multi-party coalition era. He holds that the Judicial Commission to look into appointments, as recommended by the National Commission to Review the Working of the Constitution (NCRWC), should be made more inclusive in terms of membership.

The 73rd and 74th Constitutional Amendments gave constitutional status to Panchayats and municipalities yet the act remained Achilles heel in the Indian political system. George Mathews appreciates the judiciary in sustaining the local self-government institutions yet finds it complacent with reference to cases dealing with Article 243.

An interesting change in tenor comes up with the writings of Rekha Sexena, who cautions us against the ‘over-burdening’ of courts due to several PILs. She makes a compelling case for the need to strengthen intergovernmental mechanisms to negotiate Centre-State disputes. This seems mandatory for the harmonious growth of Centre-State relations in a federal polity. It will provide a new platform for dispute resolution without knocking at the doors of courts.

S.K. Verma dwells on the challenges that the judiciary must to meet in the quest to reform itself, challenges like delays, lack of accountability, transparency, pending cases etc.

However, we need to realise a larger problem at hand in our political system, that is, the problem of implementation. Will Parliament take the onus of codifying the parliamentary privileges? Why are we not focusing on the executive and legislature to reform, which if done once, will do away the need for judicial activism? What about the social movements which have come up due to negligence of the state in regard to welfare? Is the market more effective than the state because the problems that plague the executive and legislature—delay, greed, corruption, nepotism—afflict the judiciary as well? What is the option for the common man in a universally enfranchised polity like India amidst such chaos?

To conclude, this book is invaluable to comprehend the nuances of change in the Indian judicial paradigm. Indeed, its comprehensive coverage further raises issues for academics, lawyers, scholars to probe further. n

The reviewer belongs to the Department of Political Science, University of Delhi.

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