The Supreme Court is compelled to intervene when the executive fails.
The Narendra Modi government seems to want to test the tension between the judiciary and the executive. Last month Union Power Minister Piyush Goyal spoke of “judicial overreach” in the context of keeping a balance between environment and development. This month the Prime Minister has given full-throated advice to the judiciary on its role when he asked judges to reflect on whether “five-star activists” were driving the judiciary. He was careful to speak of this being the “perception”but the message was clear.
Modi and Goyal’s statements are not that different from those made by members of the previous government who also chafed at judicial activism. In the run-up to the 2014 general elections, several members of the former United Progressive Alliance (UPA) government spoke in almost identical language when they talked about bottlenecks on the road to economic progress being linked to court rulings on environmental issues. While the UPA dealt with the problem, as they saw it, by swiftly changing the environment minister and bringing in someone more amenable to clearing project proposals, the current government set up a high-level committee headed by T S R Subramanian, a former cabinet secretary, to look again at several environmental laws that were ostensibly creating hurdles. In other words, irrespective of the politics of the party in power, on one thing they were united: either environmental laws had to be changed, or worked around, so that the business of business was unaffected.
The view of both towards an “activist” court that was willing to entertain public interest petitions on behalf of tribals displaced by mines, or by persons concerned about the destruction of biodiversity for mining, or those raising issues of human rights violations, was also identical. They viewed it as “overreach,” an encroachment into the role of the executive, even if this was not always stated. That some of the judges in the current Supreme Court do not subscribe to this view is evident in Justice T S Thakur’s response: “You call this judicial overreach, we can only say, sorry, it may continue for a long time.” Clearly, the stage is set for a tug of war.
Modi and Goyal need to be reminded that judicial activism began when the Supreme Court accepted public interest litigation (PIL) as a legitimate way for citizens to move the Court on behalf of others whose fundamental rights were being violated. In the heyday of PILs, the Court heard and passed orders on a range of issues brought before it from bonded labour and human rights to violation of pollution norms, destruction of forests and displacement of the poor in cities. The very fact that these petitions were entertained opened a space for citizens to appeal against executive high-handedness or unresponsiveness and also gave space for challenging the implementation of laws and even the absence of laws.
On environmental issues, the Court’s interventions have been mixed. The Supreme Court can be credited with a list of rulings that contributed positively to limiting environmental damage, such as steps recommended to deal with air pollution in Delhi, for instance. Its intervention also ensured that the Dongria Kondh of Niyamgiri battling the multinational Vedanta’s bauxite mining venture were given the final say in the matter. At the same time, its responses to PILs on nuclear power and on infrastructure that damages the environment have not been sympathetic towards cases made out by petitioners.
Both the courts and the executive also need to be reminded that there would be no judicial activism without the initiative taken by citizens and citizen groups. For every one human rights or environmental issue fought out over years, sometimes decades, through the courts, there are scores more that never get heard or even addressed. So for Justice Thakur to state, as he did at a meeting of the National Green Tribunal, that the environment movement was “spearheaded by the judiciary and the judiciary alone” is clearly overstating the importance of the Court’s interventions. Of the long list of environmental cases that the judiciary has taken up, most were the result of initiatives by public-minded citizens or environmental groups and perhaps only a handful would be suo motu. These cases got a positive ruling from the Court because the petitioners were able to prove convincingly that the very agencies tasked with implementing the laws of the land were violating them. It is the persistent unwillingness of the executive to abide by its own laws that compels citizens to turn to the Court. The majority of such cases need never have reached the Court if the executive was true to its own laws.
Modi’s statement that there is a “perception” that the judiciary is influenced by “five-star activists” was not made casually; it should be read as his government laying down the gauntlet in what is likely to be a tussle between government and judiciary. The plan to change the system of appointing judges is only the first step. Clearly, more is to follow. Where will this leave citizens clinging to the sliver of hope represented by an independent judiciary?
