The Judicial Palace and Its Precepts

I’m at a workshop on South Asian legal studies at the University of Wisconsin at Madison. One of the speakers here cited this article, “Scandal in the Palace” in Outlook by Arundhati Roy on the Sabharwal controversy. I had not noticed it before, and I thought I should highlight it. What I found most interesting is that Roy offers a sweeping denunciation of judicial activism and public interest litigation, two sacred cows of modern constitutional life in India:

Ironically, judicial activism first rode in on a tide of popular discontent with politicians and their venal ways. Around 1980, the courts opened their doors to ordinary citizens and people’s movements seeking justice for underprivileged and marginalised people. This was the beginning of the era of Public Interest Litigation, a brief window of hope and real expectation. While Public Interest Litigation gave people access to courts, it also did the opposite. It gave courts access to people and to issues that had been outside the judiciary’s sphere of influence so far. So it could be argued that it was Public Interest Litigation that made the courts as powerful as they are. Over the last 15 years or so, through a series of significant judgements, the judiciary has dramatically enhanced the scope of its own authority.

I find some elements of the piece rambling, unnecessarily acerbic, and flatly inaccurate. It is unclear whether Roy is adequately aware of the history of PIL and the citizen movements it engendered. I, for one, believe that the enshrining of a fundamental right to education is a direct consequence of PIL developments. And I’m puzzled by Roy’s attack on the rule of law, which is a basic feature of the Constitution. She offers this homily on jurisprudence without a basic understanding Indian legal catechism:

Today, as neo-liberalism sinks its teeth deeper into our lives and imagination, as millions of people are being pauperised and dispossessed in order to keep India’s Tryst with Destiny (the unHindu 10% rate of growth), the State has to resort to elaborate methods to contain growing unrest. One of its techniques is to invoke what the middle and upper classes fondly call the Rule of Law. The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they’re designed to protect. For instance, from the early ’90s, we have seen the systematic dismantling of laws that protect workers’ rights and the fundamental rights of ordinary people (the right to shelter/health/education/water).

But Roy does have the right to offer this critique. And like her other articles on the Court, I believe she makes an important contribution to public discourse about the law and legal system in India. I welcome thoughts from our contributors and readers.

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  • Tell us more about the conference. Roy is prone to making sweeping statements and you cant engage in an argument with her. She has a big fan following among the left in india.

  • Notwithstanding her comment about the judiciary ‘micromanaging’ our lives, Arundhati Roy does not appear to be against activism per se; rather, it seems to me that she believes that activism is fine as long as it stays true to the original ‘goal’ behind its origin, i.e. the agenda to ‘advance’ the underprivileged and marginalized people through wealth redistribution and other pet ideas of the left. She and others who believe likewise and have written on similar lines before (Prashant Bhushan comes to mind) are nostalgic about the Bhagwati days and feel that the court has strayed from that path and is now using PIL cases to push policies that favor the urban middle class over the lower classes and that is objectionable. Her polemics about the lack of justice, the quotation of Howard Zinn about the meaning of the rule of law and the distinction between justice and law all serve to underline this position.

    As you point out, there are several factual errors in that article. An important one that escaped my attention until I cross-verified it is the para from J.Pasayat’s judgment in T.N. Godavaram Thirumulpad v. Union of India and Others which she cites as evidence that ‘the Rule of Law winked and went off for a tea break’. Arguably the opinion is poorly organized but it appears that the paragraph she quotes is not the bench’s own view of the matter, rather a statement of the Expert Committee’s position. Here is the full paragraph:

    “In some cases the Expert Committee after public hearing has made the recommendations with certain stipulations. It has been clearly stated that the project can be recommended for environmental clearance. The confusion arose because DDA all through gave an impression to the parties participating in auction that all requisite clearances had been obtained. Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise. Some of the allottees are the National Book Trust, School of Planning or Architecture, Shri Ram Vithala Sikha Seva Samiti, International Centre for Alternate Dispute Resolution and Institute for Studies and Industrial Development. In most of these cases the constructions are already complete and have become functional.

    DDA had also made some constructions at the site in question. That being so, it is submitted that the recommendations made by the Expert Committee should be accepted.”

    This is supported by the context as well: the previous two paragraphs summarized the arguments of the petitioners and the respondents, a succeeding para stated the court’s understanding of the current status of the matter and the final para that came thereafter pronounced the decision. The words from the last two paragraphs run as follows: “In view of what has been stated above, the MoEF has now to take a decision by taking the land as constraint area…Let the MoEF take a decision within a period of 2 months from today to avoid unnecessary delay. The IAs. are accordingly disposed of.”

    Clearly, the court did not say anything about corporations indulging / not indulging in malpractice.

    She does have a point though – the Court has been seeking to pass ipse dixit orders on policy matters and many of its orders go way beyond any reasonable notion of judicial power. The recent exchanges between the ASG Vikas Singh and J. Pasayat testify to the concern and ire it has raised in some quarters of the Union government in this regard.