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By Upendra Baxi
ONE WONDERS how Arundhati Roy now, in the wake of the Ayodhya order, reappraises the judicial role. Just days ago, the movement of progressive public opinion, under her banner, protested against judicial monarchy; the `Ramsevaks' and their `normative' cohorts may feel inspired do the same. The Hindutva vanguard contrasts the Roy contempt hype with `pseudo- secularist' insistence that VHP campaigns for defiance of court orders be punished. This propaganda, one might say, obscures the distinction between `fundamentalist' and `secular' forms of activism. But the truth is that activism makes fundamentalists of us all. Fundamentalisms symbolise impassioned commitment to espoused values, defining our sense of justice and proclaiming the superiority of our own conceptions of common good over all others. Without this fever of the soul, no sustained activism is ever possible. The various fighting faiths pose a troublesome issue: what fundamentalisms are constitutionally and ethically legitimate? It is on this site that we witness extraordinary convergence between Arundhati Roy and Ramsevaks. Both flay adverse judicial verdicts. Both demand favourable judicial outcomes, as a constitutional birthright! Both regard contumacious conduct as legitimate public dissent. Both regard the apex court as a factory churning out pre-designed goods, not as an arena where contending suzerainties over constructions of the common good clash.
A simple way out is simply to dismiss this comparison as outrageous. `They' want to revive the Partition holocaust, `we' seek to prevent planned developmental disasters. `We' enunciate the secular future of India, `they' revive an imagined communal past. `We' are non-violent, `they' incite communal carnage. `Their' activism is `regressive', ours remains progressive. `We' are entitled to so believe. But `they' remain unpersuaded by this demonology. The brute fact is that Ramsevaks, prone to incitement for public mischief and mayhem, remain impervious to how `we' choose to portray them. They also remain co-citizens claiming human rights and due process entitlements.
This context at the very least invites `us' to re-examine `our' attitudes to judicial performance. Given the moral insolvency of political leadership and representative institutions, courts furnish the best arena there is for the politics of hope. In Justice Goswami's imagery, the Supreme Court is "the last resort of the bewildered and the oppressed". Victims of Bhopal, Narmada, and Tehri will disagree. But they would not deny that it provides them insurgent public space for the politics of protest. The Court does not always fulfil people's hopes for justice. It stayed Mandal but not the Masjid demolition. In declining to stay Advani-led rath yatras, it thus constitutionally birthed Ramsevaks, whom it now must somehow control, as by the March 15 order. All this comes to pass because constitutional politics according primacy to individual civil liberties remains largely the province of judicial activism. Judicial activism protecting peoples' democratic rights has always been a one step forward, two steps backwards phenomenon.
True, the Roy contempt judgment signals a judicial retreat from activism; its prose lacks constitutional concern for citizen oustees and the urban poor. This again raises the question: how may `we' go beyond intemperate activist public outbursts lending momentary charisma to protest, and perfecting many an activist credential, to a critique that nurtures judicial self-confidence in the task of empowering the impoverished? The Supreme Court, converted into a gigantic clearinghouse of all major political questions, understands the tendency of disappointed public interest disputants to cry foul at every outcome adverse to their cause. It begins contempt proceedings only when it apprehends that attribution of ulterior motives, which it cannot publicly rebut, may jeopardise its institutional integrity. The TV media savvy `instant jurists' suggest that this offence is ripe for abolition or at least other fora should decide lest justices become sovereign arbiters in their own cause. Given the ample history of judicial reticence, I disagree. In "The Indian Supreme Court and Politics", I narrated the Emergency and post-Emergency judicial decisions as judicial political manifestoes. I portrayed in "Liberty and Corruption: Antulay Case and Beyond" the jurisprudence of corruption and corruption of jurisprudence. The "Open Letter to the Chief Justice of India" reproached the Court's patriarchal construction of rape law in the Mathura CaseOur protest at the unconscionable Bhopal settlement bordered on contumacious outcries but no proceedings ensued. Instead, the Court engaged in a rare public acknowledgement of its egregious errors.
Far from systemically converting their constitutional discomfort into contempt proceedings, Justices have fashioned the public right to judge the judges. But even as reflexive learners, Justices still need to draw limits. Thus, they convicted E.M.S. Namboodiripad, in the 1970s, for his indictment alleging class bias in adjudication. Justice Hidyatullah, having educated him in his erroneous reading of Marxism-Leninism, thought a mere fine of Rs. 50 adequate. Namboodiripad paid this without the hype now surrounding Ms. Roy's conviction. In comparison, however, the harsh sentence meted out to Ms. Roy violates equity. The `scandalising the court' offence, riddled with inconsistencies, needs a normative check. It is simply not good enough that small Benches determine contempt. This decision must rest with the entire Court. Operationally so large a Court needs to devise a collegiate procedure whereby at least half its Justices make a unanimous finding. This overcomes the perils of idiosyncratic Bench formation, and promises mature institutional deliberation. It also avoids future reproduction of Arundhati Roy-type generation of causus celebre.
The interim Ayodhya order is constitutionally correct but so would be any subsequent decision! One hopes that the Court will continue to champion constitutional secularism. That pursuit depends gravely on the juristic arsenal that the Attorney-General of India may choose to deploy. His current defence strains belief. It is disingenuous to say that his extremely detailed plea for the conduct of puja was animated wholly by a pure zeal to interpret a prior judgment, and was altogether bereft of blessings from Shastri Bhavan and Race Course Road. The rationale of the constitutional office of Attorney-General is to brief the Government to tread the straight and narrow path of constitutional governance; that office stands debased when briefed to argue partisan regime causes. Attorney-General Niren De's defence of the Emergency excesses justifiably led to his expulsion by the Indian Bar. Rightly, Soli Sorabjee persuaded the V.P. Singh Cabinet not to oppose the Bhopal victims' review petition. Contemporary constitutional history testifies to the prowess of public advocacy. Nani Palkhivala, for example, helped the Court to devise the basic structure doctrine arresting the runaway exercise of the amendatory power, and later checkmated arbitrary imposition of President's Rule and executive domination over judicial appointments and transfers. Equally, innumerable social action litigation pioneers have sustained, against all odds, people's rights to right to life and livelihood
(The writer is Professor of Law, University of Warwick, U.K.)
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