News Analysis: Judiciary and ‘five-star’ activists


By Kartik Lokhande
The recent comment of Prime Minister Mr Narendra Modi has stirred up the atmosphere especially in political, judicial, and activist circles. Almost everyone is criticising the comment, apparently because it has come from Mr Modi as an individual, forgetting that he is the Prime Minister of India. In the cacophony of criticism, the point he wished to make, and to which many common citizens would agree, has been lost.
Is he the first person occupying a seat of power to have said this? The answer to this question is ‘No’. Previously also, several of the dignitaries and luminaries ranging from sitting or former President of India, Prime Minister, to Chief Justice of India and Solicitor General have said this. Though they did not use the term ‘five-star’ activists, they often referred to perception-driven judgments coming from courts, having direct or indirect influence of some or the other activist group. In the recent past, the then Prime Minister Dr Manmohan Singh also had cautioned about judicial activism and had said that there should not be any ‘overstepping’ of roles. Dr Singh had stopped short of referring to the influence exerted by the activists, on the judiciary; and Mr Modi spoke about it boldly, that is the only difference between statements of both.
No one, including the dignitaries cautioning against judicial overreach, denies the fact that judicial remedies sought through Public Interest Litigations (PILs) have served the nation and deprived sections well. However, no one should deny the fact that in several cases, the judiciary has been as fallible as any other system devised by humans. Also, in several cases, there were judgments or orders that created a complex set of legal contradictions. In many cases, verdicts of lower courts have been set aside by the higher courts. If court verdicts are supposed to be based on law and objectivity, how come this setting aside takes place? In answer to this question lays the important aspect -- influence.
How does this influence get created on judiciary? In 2012, the then Chief Justice of India S H Kapadia made an interesting observation in this regard, “What is judicial independence?  It is independence from politics. It is independence not only from the legislators and the  executive, but also from the pressures of organised interest groups and popular sentiments. It must be borne in mind that love for justice is rare -- what most people seek is justice which favours them.” Here, the words to be noted are ‘from the pressures of organised interest groups and popular sentiments’.
This drives home the point that there are several organised interest groups that attempt to exert pressure even on judiciary. Though not all the groups are like that, some are out there to serve either anti-national interests or the interests of ‘lobbies’ in the name of championing the cause of the poor. Also, there are certain groups and powerful individuals who wish to stoke popular sentiments to create an atmosphere that will have a direct or influence on the judges or lawyers or petitioners or respondents or all at a time. There are groups, whose members earn their bread and butter through challenging every policy decision that will not serve a particular corporate lobby. Also, there are trusts and NGOs and civil society groups that wish to challenge every strategic move of the Armed Forces or the Police machinery.
Here, one is reminded of an interesting example quoted by T R Andhyarujina, former Solicitor General of India, in one of his articles in a newspaper. The example pertains to an order passed by the Supreme Court even in a military operation. Following a court order, the authorities were required to prepare and supply food packets to militants holed up inside Hazratbal shrine in Jammu and Kashmir in 1993. The order had come following strong voices raised in favour of ‘human rights and humanitarian needs’. The fact was that the military had restricted food supplies to those inside the shrine, as a matter of strategy to end the siege.
Of course, there are other instances when certain kind of civil society groups, human rights lobbies, and NGOs come together to exert their influence on thinking of judges through hoarse cries in the media about ‘lack of freedom’ particularly in case of activists who have strong connections with the anti-national groups. Of course, security agencies commit follies at times. But, taking advantage of this, these groups get served through judiciary the interests of those using intellectuals for their sinister designs.
For instance, in cases of activists arrested on charges of having connections with Maoist terrorists, judges often end up making statements like ‘possessing literature does not make one a Maoist’, often overlooking the quantity in which copies of such literature has been seized from the activists.
In one famous case in which bail was granted to an arrested activist, the court made such a statement ‘orally’, but the operative order stated, “We have heard the learned counsel for the parties at very great length. Lest we should prejudice any party. We are not giving any reasons for our order. We however direct that the sentence on the petitioner be suspended, and he be released on bail to the satisfaction of the Trial Court. The SLP is disposed of.” The court that made the oral statements, out of sheer love of sounding intellectual, may not be aware that those oral statements are still being quoted in several other cases to pave way for release of those arrested for having connections with anti-national forces.
One may go on citing several such instances pertaining to mining, industry, forest protection, etc. In his book ‘Court and Their Judgments’, noted journalist-politician-author Arun Shourie has pointed out several such instances. Knowingly, in many cases unknowingly, the human element in judiciary gets influenced by the activists and gets itself tempted towards activism. And, most of the times, the activists influencing the thinking of judiciary are ‘five star’ or polished with ‘access’ at ‘right’ places nationally and/or internationally, for, such connections add to their ‘influence value’.
Commenting on Shourie’s above-mentioned book, legal luminary Soli Sorabjee had commented, “Judges must ensure that PILs do not degenerate into publicity, political, or personal interest litigation. Nor can every matter of public interest be the subject of a PIL.” This makes the point of influence on judges amply clear.
It is against this backdrop that Prime Minister Mr Narendra Modi’s comments cautioning the judiciary against getting influenced by ‘five star’ activists, need to be welcomed. 

(April 12, 2015. Published in 'The Hitavada' on April 13, 2015)

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