The Telegraph in its leaders has consistently argued in favour of judicial conservatism. For the uninitiated, this means that The Telegraph believes that the judiciary should not engage itself in social engineering but should concern itself with judging whether in the cases that appear before it any law of the land has been broken and what should be the adequate punishment for the transgression. The contrary view to this is the one that says judges should be active in the project to change society. Their judgments should be guided by this principle and they should on their own, when an opportunity arises, correct a social and economic injustice. One consequence of judicial activism has been the involvement of judges in matters best left to experts in the different spheres of civil society. The Telegraph has argued against this because an overactive judiciary takes judges outside the realms of law and it upsets the balance between the judiciary, executive and the legislature which is so crucial for the proper functioning of a democratic polity. There are situations, however, when judicial activism is a kind of last resort for a beleaguered polity and society.
Political rallies in Calcutta is a case in point. Anybody familiar with the city knows it has never been better described than by the words of India’s first prime minister, Jawaharlal Nehru, who once said that Calcutta was the city of processions. Life in Calcutta has been disrupted as a matter of routine by rallies protesting against or in demand for something or the other. The left parties took the lead in this and their opponents followed suit. One judge, Mr Amitava Lala, caught in a rally one morning, decided to take notice and passed an order prohibiting rallies on weekdays. Mr Lala’s order did not please the political class but drew widespread support from people who have been driven to despair by rallies and demonstrations. Even the chief minister, Mr Buddhadeb Bhattacharjee, after some initial reluctance, agreed that there was some merit in the principle that Mr Lala was trying to lay down. The collective right to assemble and protest cannot override the individual’s right to free mobility. This simple axiom has been implicitly accepted by the chief minister in his proposal to impose certain restrictions on rallies. It will not be an exaggeration to say that judicial intervention has acted as a rein on rallies, has made the government aware of the problem and taken Calcutta a step forward to becoming a more liveable city.
Judicial activism, it needs to be underlined, is the reflection of a failure or a lack within political and civil society. Social and economic change is often the work of a group or a class within civil society which takes the leadership to transform society in its own image and to suit its own interests. No such group has yet matured in Indian civil society. Within political society, there is noticeably the failure of the legislature and the executive, riddled as these two institutions are in India by venality and incompetence. Under the circumstances, the judiciary is under pressure to step in as a surrogate. It is forced to extend itself to realms which are strictly not its own. This is not altogether a welcome development but often, as in West Bengal, it is something to clutch at in hope and in despair. The Telegraph salutes the judiciary’s intervention with two, but not three, cheers.