Judicial Activism: A Rebuttal of Justice Jeevan Reddy's Thesis

Today's article by B.P.Jeevan Reddy summarizes succinctly the key talking points of the pro-judicial activism groups in India. Justice Jeevan Reddy was one of the prominent judges of the Supreme Court during the late '80s and early '90s and wrote many important opinions foremost among them being Indra Sawhney (Mandal I) and Unnikrishnan. He was also a leading activist and his formulation of the free seat / payment seat scheme for professional college admissions reflected his judicial philosophy at the time. In fact, the entire college admission muddle that students face year after year can be traced back directly to his opinion in that case. While I have criticized Krishna Iyer's views before, Jeevan Reddy's fall to a large extent in a different category. His views here (and before) show a significant streak of pragmatism as he seeks to appeal to reason and common sense unlike Iyer who builds his case mostly on an ideological foundation. I write here because these views, despite being erroneous, are nevertheless widely held and not having been seriously challenged before, deserve to be emphatically refuted.

The Hindu editorial position on this issue has been unclear at best. While joining issue with the court on particular matters, it has never expressed itself for or against the idea at all. My sense is that it would prefer a carefully calibrated approach somewhat along the lines of Krishna Iyer's views with a strong judiciary pushing for socialist goals slowly and cautiously. The paper has however been very careful to distance itself from socialist positions where it saw its own interests threatened - for example, its relatively strong support for the Inamdar opinion (where the court ruled that governments cannot decide on unaided private college admissions) was contrary to the official line of the CPM which favored 'social control' over the admission process. There are several other like examples. In fairness, it has allowed people on both sides of the aisle to debate it out on its op-ed pages. Khare has been the most vocal opponent calling for the 'PIL shop' to be wound up while others such as Krishna Iyer and Jeevan Reddy continue to favor the idea albeit with some exceptions. In the first two paragraphs, he makes a series of allegations all of which are at the very least debatable.

One must say Parliament and the State Legislatures have, by and large, performed their duty fairly satisfactorily; they have enacted many laws touching upon and regulating activities in the social, economic, educational and health spheres — indeed all activities touching the lives of the citizens, in particular the weak and vulnerable sections.

It is, however, common knowledge that the Executive has failed, in a large measure, to implement these laws in letter and in spirit — for reasons which need not be gone into here. This is a feature of the Indian state which has been pointed out repeatedly by several social philosophers and economists over the last four decades and more. Gunnar Myrdal, Scandinavian scholar, famously called (in the 1970s) it a ‘soft state,’ precisely because it does not have the will and the requisite discipline to implement the laws made by it. The result is that several laws and schemes in the social and economic sectors have remained mere declarations of good intentions. A visit to any government school, government hospital, a fair price shop or primary health centre is sufficient to bring home this truism.

Actually many believe that Parliament and state assemblies are not doing a good job. They mostly make noise and spend more time in partisan wrangling than holding meaningful debates. On major welfare questions, one often sees competitive populism with neither side willing to bring in a much needed reality check on the limitations of state intervention.

Again, it is easy to say that the Executive has failed owing to apathy because it is unwilling to implement laws passed in good faith by the legislature though the reality is more complex. In India, it is the Executive that takes all the responsibility, not the legislature. Unlike the U.S. Congress, budgets are drawn up by the finance minister and passed, sometimes without debate in both houses. Financial allocations for schemes is again made by the finance ministry, not the state/Central legislatures. Welfare schemes are drawn up by the various ministries and/or the planning commission, not the parliamentary standing committees. Opposition parties are given to making reckless demands precisely because they are fully aware that the government will not be able to meet them. The responsibility for governance rests in large part on an Executive that is however held to account by a legislature that is unable or simply unwilling to show the same degree of balance and caution in its actions (this is much the same story in every democracy). The result? A disconnect between enactments and enforcement that serves both sides - legislators of all parties can conveniently claim credit for passing the measure and pass the buck to the Executive when nothing changes on the ground.

The other question is about all the laws already on the statute and why the government is not implementing them. Answer: for the very same reason - money and priorities. The politico-legal landscape is littered with centuries of laws and wonderful intentions. Repealing them is often a very difficult task as no one wants to be seen doing something so undesirable; on other occasions, the issue simply does not have enough traction for legislators to care either way. In any case, a number of laws remain on the books with few people even noticing their presence. Take for example a law that requires hotels and innkeepers to provide drinking water free of charge to all passers-by - most people have probably never heard of it and I doubt whether anyone has actually been hauled up in court for failing to do so. Yet, imagine trying to pass a new law repealing this old one and you would probably see the left and other opposition parties regardless of ideology joining hands to oppose the government for being hand-in-glove with the hotel management lobby. Governments would therefore not want to touch such a hot potato and would prefer to ignore the whole thing and let it stand while doing absolutely nothing to enforce it.

That being said, how does a government decide which laws to enforce and to what extent? That depends on the resources available and the gravity of the matter in question, both of which are decided based on the political agenda of the government of the day. If the government believes that a well-equipped police force is central to improving law and order, it may provide police stations with all the tools for investigation and enforcement while cutting corners with development schemes. Alternatively, if it feels that increasing crime is a result of poverty and will not be alleviated by better policing, they may choose to cut funding for cops and instead provide the same money to a rural employment guarantee scheme. In the first instance, cops may be able to go after every small time criminal whereas a broken irrigation canal may not be fixed for years; in the second, the police may have such limited means that they are forced to conserve their resources to investigate only the most gruesome murders letting all other crimes pass by.

Why do government facilities have such poor infrastructure? In part of course is the corruption story that everyone is aware of. A second reason is that political leaders have long believed two things. One, that infrastructure is valued by the public less than welfare measures - hence all the focus on various development schemes and much less on building roads, railways, bridges, schools or hospitals. The fact that governments that built flyovers, bridges and roads during the '90s lost elections badly only added grist to this perception. The other is that spreading the money around is better than pooling resources in one place. Instead of providing district hospitals with CT scan machines, it is better to spread the same money to build more primary health centers; instead of building a few national universities, it is better to build an engineering institute (IIT) in one place, a medical institute in another, an agricultural college in a third city and so forth. Again, in place of providing huge resources to render these institutes internationally competitive, it is preferable to open some more of the same quality in other cities. Thus, it is better to have another 10 IITs rather than the existing six being converted into Indian equivalents of MIT. In other words, it is a conscious policy choice to prefer the mediocrity of the many over the excellence of the few. The third reason of course is that recurring expenditures are a huge burden that governments do not sufficiently take into account when accepting new responsibilities. Building new structures is relatively easy, staffing and maintaining them over the long term is the more difficult part that calls for enduring commitments that unfortunately falls prey to the vicissitudes of public priorities. Simply blaming the executive is hardly a solution. Instead one needs to ask whether it is prudent to compel governments to take upon so many responsibilities in the first place and if so, what the alternatives are if they do not live up to them. All of this brings us to the question, is a judicial order forcing implementation the solution?

In such a state of affairs, if a complaint is brought before court — mainly the High Courts and the Supreme Court — that a particular law or provision or scheme is not being implemented properly and a direction is asked for its implementation, what should it do? Should the court say the matter is none of its concern, that the administrators know their duty and are expected to do it, or call upon the authorities concerned to discharge the functions entrusted to them by the law? After all, the judiciary is also an organ of the state ordained by the Constitution to achieve the goals set out in the Preamble and Parts III and IV.

The author argues it is. I say it is not. If an order is passed forcing implementation, surely the particular measure may be quickly acted upon but at the cost of a different measure or policy that never came before the court and is either not prominent enough to attract popular attention or those affected by it are not aware of their loss to petition the authorities for redressal. If the court orders particular roads to be repaired first (like the Allahabad High Court did a while ago), it is likely that the machines would simply be moved to fix those roads first and whichever others were supposed to have been repaired first based on traffic load or extent of damage would simply get relegated to the background. This facet of the outcome is completely ignored by supporters of activism.

But when such directions are made, it is called an instance of ‘judicial activism’ in a pejorative sense. If such directions are made at the instance of a public spirited individual or organisation — on the basis of what is called public interest litigation (PIL), a technical objection is raised that the really aggrieved person is not the complainant. The problem is that very often the really aggrieved person does not have the wherewithal to approach the court and hence someone does so on his behalf. The issue in such a case is, and should be, the truth of the complaint rather than the identity of the complainant. Maybe, the court does not have the means or machinery of its own to enforce its orders and directions and has to depend upon the very same official machinery, which is found to be lax. Even so, orders made by the courts do carry certain sanction — the power to punish for contempt — and are thus more effective. No one suggests that court can correct all ills afflicting society but the effort should be to try to do the little good that one can do rather than inventing arguments for not doing anything.

For the reason indicated above, it is open to question whether 'good' (last sentence) actually comes out of such intervention. He says that the truth of the complaint is all that matters, not who made it or why. That again is a problem because the Courts are easily flooded with numerous complaints of that nature against virtually any prominent individual. This is particularly so at election time and is increasingly a tactic being used against celebrities and businessmen. The trouble is that the Court, at the time of hearing the petition, is not usually aware of the veracity of the complaint. What it hears is only an allegation with little or no documentation and an investigation would be necessary to establish whether or not there is truth in the matter. Official investigations can cause much pain and hardship in many ways to those bearing the brunt of it, so the question is whether the courts ought to launch witchhunts on the basis of such complaints where regular processes such as evidentiary requirements are being short-circuited. If so, that would amount to turning the country into a judiciary-led police state thereby spelling an end to our civil liberties.

The other type of ‘judicial activism’ is the field of interpretation of fundamental rights, in particular the right to equality (Articles 14 to 16), the several freedoms in Article 19 and the right to life and personal liberty in Article 21. While interpreting these Articles, there is scope for judges to read their personal philosophies into the provisions. This criticism is not peculiar to India; it has been a hotly debated subject in the United States for long. An example, indeed from the U.S., would better illustrate this aspect. By the 14th Amendment to the American Constitution (1868), equal protection of laws was guaranteed to its citizens. Indeed by the 13th Amendment (1865), slavery was abolished. That was a time when slavery was rampant and blacks were subjected to untold discrimination and segregation in every walk of life. There were separate schools for them. No black student could seek admission to a school meant for the whites. When these segregationist policies were challenged as violative of the equal protection clause, the Supreme Court (in 1898) held that such a treatment did not violate the clause; the court evolved a novel doctrine called ‘separate but equal’ to justify these practices. But come 1954, this very 14th Amendment was differently interpreted by that very court, which held that the doctrine of ‘separate but equal’ and the segregationist practices it sanctioned were all violative of the equal protection clause and hence unconstitutional. By this decision (Brown) and the others which followed in quick succession, the entire edifice of segregation and discrimination against the blacks was dismantled and outlawed. The consequences of this activist role of the court are there for all to see; in less than 55 years, a black American is likely to become the next President of the U.S. What an enormous contribution by the court — and how welcome, just, equitable, democratic and humane! Could this ever have happened but for the said decision? Maybe, it could have happened but we do not know when and how. It was the court which acted as the agent of change by interpreting the equality clause in its modern and equitable context, without the help of any law made by Congress.

It is true that the U.S. Supreme Court outlawed desegragation in public schools in Brown but that was hardly the only event that changed the racial attitudes in America. A large part of the credit ought to go to those who shepherded the Civil Rights Act through Congress in 1965 including the then President Lyndon Johnson and the leader of the Civil Rights Movement, Martin Luther King. The outcome was the result of a prolonged and sustained struggle for racial integration and equality, not only the outcome of Court opinions. This is not however to belittle the Court's contribution but the same attitude has caused the Court much trouble and controversy in Roe v. Wade where it ruled that the Constitution mandates a right to abortion. Besides, the whole idea of Brown that the 14th Amendment mandates racially integrated schools is difficult to justify in principle. As Justice Scalia points out in his book, whether the races and genders ought to be integrated or remain separate is entirely a matter of tradition. For example, by the same yardstick, should men and women have common unisex toilets because 'equal but separate' is unconstitutional?

Lastly, he highlights what he believes are the positive achievements of judicial activism.

Coming to the Indian scene, the activist phase of the Supreme Court became discernible clearly after the Emergency was revoked in 1977. Look at the substantial contribution on this score. Prisoners’ rights: it was held that a prisoner on conviction or awaiting trial does not lose all his fundamental and legal rights but loses only the right to free movement. Safeguards against arbitrary arrest: clarification of the rights of the accused on being arrested; prohibition of long incarceration pending trial; clarification of the concept and objectives behind bail; condemnation of routine handcuffing; prohibiting quarrying and mining activities endangering natural resources and releasing persons from bonded labour are some of the instances.

The restrictive interpretation placed on personal liberty, indeed the manner of interpretation of the fundamental rights adopted in 1950 (Gopalan) was overruled in 1979, reading Articles 14, 19 and 21 together and harmoniously (Maneka Gandhi). Article 21, to reiterate, has been the main spring from which innumerable rights have been inferred — the right to free elementary education, the right to speedy trial, the right to privacy, the right to medical aid to workers, the right to pollution-free water, elimination of water and air pollution and so on. The issue of air pollution reminds us of the Supreme Court orders mandating all public vehicles to shift to CNG with a view to protecting the health of Delhi citizens. True, there was no law providing for the same. But the question is: was it bad? Maybe, this measure did cause dislocation of and disturbance to the occupations and lives of certain members of the public but, overall, it is undeniable that the measure improved the quality of air over Delhi.

Coming to the Delhi CNG issue, this is one instance (indeed the only one that I am aware of) where a study has been carried out that examines the impact of activism - a judicial audit of sorts. I quote here verbatim from that paper.

In the Delhi Vehicular Pollution Case, the equity concerns are less stark, but they are nevertheless significant. R Mehta, erstwhile Chairman and Managing Director of the Delhi Transport Corporation (DTC) described the conversion to CNG as a ‘legally driven process which badly affected the common man’. The DTC, on pain of contempt, took diesel buses off the roads when the Court-ordered deadlines passed. Although CNG buses were allowed to ply on the roads, given the scarcity of CNG in the early days, these buses had to travel 40 kms and spend several hours queuing up outside CNG dispensing stations to collect CNG. As a result only a few buses were available to ferry passengers. The hardship was borne by those who relied on public transport not those with private vehicles. Eventually the CNG supply crisis eased but only at the expense of industries. The DTC was obliged to buy 2000 buses in 14 months to implement the Court order. CNG buses are 1.6 times more expensive than diesel buses. And there are considerable costs associated with setting up CNG stations. The DTC is arguably in ‘financial doldrums’ as a result of complying with the Supreme Court’s orders. Efforts to offset the costs by increasing bus fares have been controversial (and politicized), because of their impact on the ‘daily wagers’, that is, the common person. In May 2002, however, bus and auto fares increased nominally. The Court imposed an extremely high-cost option, and in any developing country it is important to ask whether the cost to the public exchequer was justified, whether lower cost alternatives were available, and indeed who will ultimately pay the cost. As one government official noted, ‘[i]n a country like India there are many other priorities’.It is difficult to determine which priorities were subordinated in the service of Delhi’s air quality, but it is surely a question that needs to be asked.

Private transporters who were forced to make huge investments to convert to CNG flagged another equity issue. They argued that the contribution of private buses to pollution was not significant compared to the number of other vehicles on the roads of Delhi.141 And, indeed, it is difficult to ascertain, on what principled environmental basis a distinction was drawn between vehicles for private use and vehicles for commercial use. In 2000 there were an estimated 852,000 cars/jeeps, 45,000 auto rickshaws, 8,000 taxis and 18,000 buses. The contribution of the approximately 70,000 private commercial vehicles to air quality in Delhi, while not insignificant, is certainly not in the same league as the contribution of the 852,000 private cars/jeeps, yet the former alone were targeted. And, today, the gains from the Court-ordered conversion to CNG are being offset by the increase in the number of private vehicles in Delhi, as well as the increase in the dieselisation of the private car fleet. In four short years the registration of diesel cars increased from 1,881 (in 1999) to 13,890 (in 2003). And, the steady rise in nitrogen dioxide (NO2) emissions in Delhi is sourced in part to this.

...Although CNG is an environmentally friendly fuel, some argue that as a solution to the CNG problem it is neither economically viable nor easily implement-able. As highlighted earlier, CNG is a high-cost option. Since it was Court-ordered, the necessary rsources were devoted to CNG conversion in Delhi, but it is only now that the MOEF is looking into the cost-effectiveness of CNG. That it was difficult to implement is evident from the ‘teething troubles’ referred to earlier. Further, CNG is not a complete solution in itself. This is evident, in part, from the fact that notwithstanding the introduction of the CNG programme in Delhi, there is a 21.3% increase in cases of lung disease, and more than 20% increase in asthma attacks. A complete solution would address all the relevant pollutants, choose a range of clean fuels and institutionalise inspection and maintenance facilities. CNG only addresses the problem of suspended particulate matter (in this CNG has the clear advantage over other fuels). According to the Mashelkar Committee Report although a CNG vehicle emits 80% less particulate matter, 25% less nitrous oxides and 35% less hydrocarbons, the output of carbon monoxide (CO), a precursor to green house gases (GHGs), is over five times greater than that for diesel. And, a CNG vehicle driven for a mile emits 20% more GHGs than driving a comparable diesel vehicle for a mile. It concludes that ‘from the perspective of global warming, the decision to move from diesel to CNG is a harmful one’.

The Court chose the EPCA-recommended ‘one fuel’ option over the Governmental-alternative of increasingly stringent emissions standards and a range of permissible clean fuels. The Court has also chosen, in order to make CNG competitive, to involve itself in the issue of CNG pricing. Yet it is questionable if CNG is a scalable option. CNG is currently supplied in the transport sector only in Delhi, Surat, Mumbai and Ankleshwar. Extending CNG availability to other cities such as Kolkatta and Chennai would imply substantial investments in CNG infrastructure, which could only be justified if there is a demand for CNG in sectors such as power and fertilizers as well. In the meantime, even polluted metropolises like Chennai will need to explore other clean fuel options. Air quality data indicates an increase of 15% in the levels of NO2 from 2002. This spike in NO2 can be attributed in part to the introduction of the CNG programme. The Mashelkar Committee Report noted in 2002 that, ‘in the case of alternate fuels CNG and LPG to achieve the intended benefits with respect to emissions, maintaining the quality of conversion kits is crucial’. CSE also admits that CNG vehicles are extremely sensitive to maintenance, and ‘NO2 emissions can increase rapidly if the CNG vehicles are poorly maintained’. The third element of an effective solution—institutionalised inspection and maintenance facilities—was conspicuous by its absence in the early years after the CNG conversion, hence the NO2 spike. Clean fuel and clean technology are not sufficient in themselves—they need to be matched with efficient inspection and maintenance facilities. The Court has since realised this, and it is currently engaged, through the EPCA, in institutionalising inspection and maintenance in Delhi. The NO2 spike can also be traced to the growing numbers of private diesel vehicles, and the growing number of vehicles in Delhi more generally.

...A final issue of concern is the safety of CNG vehicles. After a series of fire incidents, the Court through the EPCA launched an investigation into the fire hazards and safety of CNG vehicles. The EPCA-appointed expert committee found that although CNG is an inherently safe fuel, bulk/continuous releases from fuel systems can cause fire, and there is an increased likelihood of this occurring in converted and poorly maintained vehicles. In addition a recent study on the health of DTC drivers found that the conversion to CNG, since CNG vehicles are heavier, attain higher temperatures and require more frequent gear changes than vehicles on conventional fuel, has worsened conditions for drivers, who suffer from musculo-skeletal, respiratory and neurological disorders. The Court and the EPCA are engaged in studying and addressing these safety concerns.

Clearly, the much quoted Delhi CNG story has two sides to it. It is false to claim that all that flowed from the court's intervention is only milk and honey. In light of all the costs involved, how is a court which is hardly an expert in these matters going to decide what is the 'right' approach to take? In fact, is there one right approach at all? I would say there is not. What is best for the city needs to be analyzed through reasoned debate where the benefits can be weighed against the costs and the optimal solution arrived at through public deliberation rather than the whole issue being forced undemocratically through judicial fiat without proper appreciation of the consequences. As for the mining cases and others, they have created their own problems that I will not go into here. The bottom line however is not only can the law of unintended consequences play havoc but all those 'progressive' opinions that he cites can be undone as easily by 'regressive' ones with the same ease by a future bench. Indeed that has happened with defendant rights - a court that favored defendants strongly in the '70s and '80s is now loaded so heavily against them that I would go so far as to question whether a fair trial for certain kinds of crimes is even possible in our courts anymore.

Finally, he makes the case for good PIL as opposed to bad PILs.

It is quite true that on some occasions, the courts might have overstepped their limits. For example, orders directing the construction of roads or bridges, orders seeking to lay a timetable for the running of trains, orders directing beautification of a railway station and so on. But these again are mere aberrations.

Ask ten lawyers what the difference is and I bet each would suggest a different bunch of cases that ought to, in his or her view, fall in either category. Most of them have their own pet agendas and earnestly feel that judicial intervention would be justified in those cases. Equally, many of them also believe that cases that support propositions contradicting their own views ought to be dismissed. All of them including Justice Reddy ought to answer two questions before their claim of good/bad PIL can be entertained: (1) Where would you draw the line? (2) What is the legal basis for that line or in other words, why choose the one over others?

I am yet to find a single article that answers both of those questions in principle. This op-ed is silent as well. I will sign off on this overly long post leaving it to the reader to mull over this.