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Perception and Reality

1) The Indian Prime Minister Narendra Modi and Power Minister Piyush Goyal have both recently criticized the judiciary for "judicial overreach" and suggested it is being influenced by "five-star activists". 2) Both the current government and the previous UPA government have been frustrated by court rulings on environmental issues that have blocked economic projects. They have tried to change environmental laws or work around them. 3) While the judiciary's interventions on environmental issues have had mixed results, many important rulings have helped limit environmental damage. Most environmental cases taken up by the courts were initiated by public-minded citizens and environmental groups, not the judiciary alone.

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46 views

Perception and Reality

1) The Indian Prime Minister Narendra Modi and Power Minister Piyush Goyal have both recently criticized the judiciary for "judicial overreach" and suggested it is being influenced by "five-star activists". 2) Both the current government and the previous UPA government have been frustrated by court rulings on environmental issues that have blocked economic projects. They have tried to change environmental laws or work around them. 3) While the judiciary's interventions on environmental issues have had mixed results, many important rulings have helped limit environmental damage. Most environmental cases taken up by the courts were initiated by public-minded citizens and environmental groups, not the judiciary alone.

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omnep
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© © All Rights Reserved
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Download as PDF, TXT or read online on Scribd
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EDITORIALS

Perception and Reality


The Supreme Court is compelled to intervene when the executive fails.

he Narendra Modi government seems to want to test the


tension between the judiciary and the executive. Last
month Union Power Minister Piyush Goyal spoke of
judicial overreach in the context of keeping a balance between environment and development. This month the Prime
Minister has given full-throated advice to the judiciary on its
role when he asked judges to reflect on whether five-star activists were driving the judiciary. He was careful to speak of this
being the perceptionbut the message was clear.
Modi and Goyals statements are not that different from
those made by members of the previous government who also
chafed at judicial activism. In the run-up to the 2014 general
elections, several members of the former United Progressive
Alliance (UPA) government spoke in almost identical language
when they talked about bottlenecks on the road to economic
progress being linked to court rulings on environmental
issues. While the UPA dealt with the problem, as they saw it, by
swiftly changing the environment minister and bringing in
someone more amenable to clearing project proposals, the
current government set up a high-level committee headed by
T S R Subramanian, a former cabinet secretary, to look again at
several environmental laws that were ostensibly creating
hurdles. In other words, irrespective of the politics of the party
in power, on one thing they were united: either environmental
laws had to be changed, or worked around, so that the business
of business was unaffected.
The view of both towards an activist court that was willing
to entertain public interest petitions on behalf of tribals displaced by mines, or by persons concerned about the destruction
of biodiversity for mining, or those raising issues of human rights
violations, was also identical. They viewed it as overreach, an
encroachment into the role of the executive, even if this was not
always stated. That some of the judges in the current Supreme
Court do not subscribe to this view is evident in Justice
T S Thakurs response: You call this judicial overreach, we can
only say, sorry, it may continue for a long time. Clearly, the stage
is set for a tug of war.
Modi and Goyal need to be reminded that judicial activism
began when the Supreme Court accepted public interest litigation (PIL) as a legitimate way for citizens to move the Court on
8

behalf of others whose fundamental rights were being violated.


In the heyday of PILs, the Court heard and passed orders on a
range of issues brought before it from bonded labour and human
rights to violation of pollution norms, destruction of forests and
displacement of the poor in cities. The very fact that these petitions were entertained opened a space for citizens to appeal
against executive high-handedness or unresponsiveness and
also gave space for challenging the implementation of laws and
even the absence of laws.
On environmental issues, the Courts interventions have
been mixed. The Supreme Court can be credited with a list of
rulings that contributed positively to limiting environmental
damage, such as steps recommended to deal with air pollution
in Delhi, for instance. Its intervention also ensured that the
Dongria Kondh of Niyamgiri battling the multinational
Vedantas bauxite mining venture were given the final say in
the matter. At the same time, its responses to PILs on nuclear
power and on infrastructure that damages the environment
have not been sympathetic towards cases made out by
petitioners.
Both the courts and the executive also need to be reminded
that there would be no judicial activism without the initiative
taken by citizens and citizen groups. For every one human
rights or environmental issue fought out over years, sometimes
decades, through the courts, there are scores more that never
get heard or even addressed. So for Justice Thakur to state, as
he did at a meeting of the National Green Tribunal, that the
environment movement was spearheaded by the judiciary and
the judiciary alone is clearly overstating the importance of the
Courts interventions. Of the long list of environmental cases
that the judiciary has taken up, most were the result of initiatives by public-minded citizens or environmental groups and
perhaps only a handful would be suo motu. These cases got a
positive ruling from the Court because the petitioners were able
to prove convincingly that the very agencies tasked with implementing the laws of the land were violating them. It is the persistent unwillingness of the executive to abide by its own laws
that compels citizens to turn to the Court. The majority of such
cases need never have reached the Court if the executive was
true to its own laws.
APRIL 11, 2015

vol l no 15

EPW

Economic & Political Weekly

EDITORIALS

Modis statement that there is a perception that the judiciary is influenced by five-star activists was not made casually;
it should be read as his government laying down the gauntlet in
what is likely to be a tussle between government and judiciary.

Economic & Political Weekly

EPW

APRIL 11, 2015

vol l no 15

The plan to change the system of appointing judges is only the


first step. Clearly, more is to follow. Where will this leave citizens clinging to the sliver of hope represented by an independent judiciary?

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