On December 7, when firebrand Communist Party of India (CPI) member of Parliament (MP) Gurudas Dasgupta moved a calling attention motion on the “lack of harmony in the functioning of the judiciary, executive and legislature”, he got support from an unexpected quarter. From the other end of the ideological spectrum, Bharatiya Janata Party’s V.K. Malhotra asked the Prime Minister to convene an all-party meeting on the issue.

So what has got the politicians all in a lather' Several judgements.

In January, the Delhi High Court issued notices to the government, the Lok Sabha Speaker, the secretaries general of the two Houses of Parliament and the Election Commission on the expulsion of nine MPs in what is being called the cash for queries scam. Speaker Somnath Chatterjee said that the courts could not pass orders on the privileges of Parliament. The Supreme Court referred the matter to a Constitution Bench.

In September, at the height of the controversy over granting clemency to Afzal Guru, sentenced to death in the December 13, 2001, Parliament attack case, the Supreme Court held, while hearing an appeal against another pardon, that clemency decisions could be subjected to judicial review.

In December, the court asked that the report of a parliamentary committee on the scope of implementing 27 per cent reservation of seats in educational institutions for Other Backward Classes be given to it even before it was considered by Parliament. The request was later modified.

“That was clearly going too far,” says former Supreme Court Chief Justice G.B. Patnaik. “The power of the judiciary to test the legality of a law is available only after it is passed, not while it is in the deliberation stage.”

But this wasn’t the only instance when the judiciary was seen to be going too far. Judicial pronouncements have ranged, as Congress lawyer-politician Abhishek Manu Singhvi puts it, “from the divine to the banal and comical” — from advancing the date for a vote of confidence in the Jharkhand Assembly and directing the Speaker to keep the House proceedings peaceful in March 2005 to ordering langurs in Delhi to be transported to neighbouring states. That is leaving both the executive and legislature perpetually in nail-biting mode, wondering when the next missive will strike.

India’s constitutional democracy has certainly come a long way from former Prime Minister Indira Gandhi’s call for a committed judiciary in the mid-1970s. The Constitution has plainly demarcated, with adequate checks and balances, the roles of the three branches of government. The legislature is to pass laws, the executive to administer it and the judiciary has the power to review their constitutional validity and enforce them. However, the power of judicial review has, notes the Bharatiya Janata Party’s lawyer-politician Arun Jaitley, tilted the balance in the judiciary’s favour. In recent years, the judiciary has come under attack for using this lead to enlarge its jurisdiction.

India is clearly seeing an upsurge in judicial activism. The phenomenon goes back to the 1970s and 1980s when judges such as V.R. Krishna Iyer and P.N. Bhagwati successfully ensured that the poor and disadvantaged got access to justice. The contours, however, appeared to have changed with the judiciary seen as getting into areas of policy formulation and implementation.

The middle class, though, is rejoicing. The judiciary is its new hero, putting politicians on the mat and forcing ministers and bureaucrats to perform.

“The judiciary is not overstepping its limits in any way,” says Magsaysay Award winning environmental activist-lawyer M.C. Mehta, whose public interest litigations (PIL) had led to landmark court orders. To him goes the credit of getting tanneries shifted out of Calcutta and polluting industries out of Delhi, the switch to CNG by public transport in Delhi and by local industries in Agra (to protect the Taj Mahal). “All it is doing is ensuring that the law is enforced properly, and that everyone who is guilty is made accountable.” A corruption-ridden executive and ineffective legislature is not able to do this, he rues. Whenever he has filed a PIL, it has been as a last resort, “because nothing else would work”.

Singhvi may be right in saying that “one man’s activism is another man’s abdication” but Patnaik can understand Mehta’s plight: “If the judiciary is encroaching on the turf of the executive and legislature, it is because of inaction on their part in performing their constitutional obligation.”

That obligation is often a grey area, which has helped courts expand their area of influence. For example, no laws were being violated when the Supreme Court banned the felling of trees in the northeast or ordered the use of eco-friendly fuels in Delhi and Agra or the shifting of tanneries. Yes, but protecting and improving the environment and improving public health are among the directive principles of state policy which the government has not been ensuring, counters Mehta, who invoked these provisions in his various PILs. “So long as it is in the larger interests of society and citizens, such expansion is a boon, not a bane,” says Patnaik.

But who is to decide the larger interest' It has to be the legislature and executive, insists lawyer Prashant Bhushan, who himself has filed several PILs. “What environmental costs are to be traded vis-à-vis social costs is a matter of public policy. Policy is the job of a government that is democratically elected and accountable, which the judiciary is not,” he argues. “A judge cannot substitute his wisdom for that of the executive.” The PILs he has filed — on implementation of the National Police Commission report and a proper regulatory regime for genetically modified organisms — are only seeking a limited intervention on clearly enunciated legal principles, he argues.

In any case, he notes, the executive-judiciary clash is often overstated, with governments sheltering behind the judiciary when it has to take unpopular actions like clearing slums. However, when enforcing orders leads to violent clashes (as in the sealing drive against unauthorised shops in Delhi) the government finds court orders unrealistic. That is what generates resentment against the judiciary as an institution among politicians and bureaucrats alike.

What politicians certainly didn’t bargain for was the courts refusing to condone their misdemeanours, especially the judgement saying administrative sanction is not required to prosecute ministers and legislators for corruption (while hearing a petition by Lalu Yadav, Rabri Devi and former Punjab chief minister Prakash Singh Badal, all facing corruption charges) and asking the Central Bureau of Investigation to proceed with the prosecution of former UP chief minister Mayawati in the Taj Heritage Corridor scam case. Both orders are sound in law, says Patnaik.

This has only endeared the judiciary further to the common man. “Politician bashing has become so common that when the judges pass orders against them, even if it is not something new, they are seen as knights in shining armour,” says Jaitley.

What’s more, the public feels judicial aggrandisement is justified in the face of executive or legislative delinquency. “Two wrongs don’t make a right,” retorts Singhvi. “If executive delinquency or abdication is an excuse for judicial policy formulation, it is self-defeating because it will breed further executive abdication and will only perpetuate the disease.”

Another politician was more blunt: “We can also raise questions about judicial delinquency. Look at the number of pending cases. Let the judiciary first set its own house in order.” That’s a point Bhushan also makes, pointing out that the judiciary is often not accountable and the near-impossibility of getting rid of corrupt judges.

So is a confrontation inevitable or can it be avoided' “Statesmanship, constitutional vision and inter-institutional courtesies are required on all sides to avoid a confrontation,” says Jaitley. Sounds good, but will it work'

Western woes

Indian politicians who’ve been ranting against judicial activism are in illustrious company. American Presidents Thomas Jefferson and Abraham Lincoln had to bear the brunt of proactive judges; Jefferson calling them “sappers and miners” undermining the foundations of the confederation. The US Supreme Court even struck down legislation to give shape to Franklin Roosevelt’s New Deal, and he publicly said that it had been acting as a policy making, and not a judicial, body. But an active judiciary played an important part in ending racial segregation in the US.

So is the US Supreme Court more powerful than its Indian counterpart' In India, the separation of powers between the executive, legislature and judiciary is similar to what exists in the US. In both the judiciary has the power of judicial review over laws passed by the legislature and over executive action. The Indian judiciary, however, is stronger. It even has judicial review over constitutional amendments, which the American judiciary doesn’t.

There’s no clear separation of powers in the United Kingdom, so the issue of judges crossing their boundaries hasn’t really become a major issue. But over the past decade, judges have been overturning executive decisions and that prompted a debate on the relationship among the three branches of government in the House of Lords in 1996. The process of creating a separate judiciary in the UK has started.