Of judicial power

IN its judgment sentencing Arundhati Roy to a day's imprisonment and a fine of Rs.2,000, with a default clause of three months, the Supreme Court has confessed to feeling "under constant threat". "The confidence in the courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person," the court has said.

Is there, in fact, a lessening of this confidence? Is there evidence of more than mere murmurs of protest and disenchantment among some classes of the people? Is it possible to track down the genesis of this active resistance to judicial dicta?

In the past 20 years the power of the court has expanded. It began in the early 1980s when the judiciary enlarged its jurisdiction and demystified the procedure of the court process to reach rights to those who had till then been beyond the court's ken. Scouring the pages of law reports prior to the lifting of the Emergency will reveal the irrelevance of the courts to a large part of the Indian population, except perhaps as coerced subjects of criminal law. Those caught in the throes of severe disenfranchisement, dispossession and rightlessness became the court's constituency. So the bonded labourer, the incarcerated undertrial, the labouring child, migrant labour, women in custodial institutions became the concern of the court. This re-invention of the Constitution as something relevant to the thus-far marginalised masses resurrected for the court a legitimacy that had been placed in jeopardy during the Emergency, especially after the habeas corpus decision which endorsed an unqualified power in the executive government over life and liberty.

Public interest litigation (PIL), which altered the connotations of 'access to justice', allowed the court to invite and collaborate with, especially, a complex of social movements, social activists, socially committed academics and investigative journalists in constructing its constituency. This creative use of judicial power inevitably changed the nature and expanse of that power.

In the first seven to eight years of PIL, there was an attempt by the Supreme Court to push for an acceptance of the rights of the dispossessed on a non-adversarial agenda. There was also clarity that where PIL was employed the court's constituency would be the affected people. Movements, activists, academics, journalists and others celebrated the assumption of responsibility by the court, and tacitly endorsed the increased power of the court because it was used for the people who had otherwise been kept beyond the pale.

By the time the decade of the 1990s got under way, the court was propelled into taking on corruption in public life, and environmental concerns, especially in the cities, and had gained a further lease of legitimated power. In the meantime, however, the court was also confronted with conflicting interests, and with having to decide which interest ought to prevail. The right of over 30 per cent of the residents of Delhi to their shelter in the slum settlements was pitted against the need to 'clean up' the city. The right to a relatively unpolluted environment by means of the relocation of industries was pitted against the right of the working classes to their livelihood. The right to life, livelihood and protection from immiseration and exploitation of communities displaced along the Narmada was pitted against the right to water that the dam was expected to reach to the people in parts of Gujarat; it was also pitted against the enormous amounts of money that had already been expended on the dam. Even the right of the victims of the Bhopal gas disaster to receive compensation was pitted against the bureaucratic imperative of winding up the processing of claims.

Increasingly, the constituency on whose behalf the enhancement of judicial power has been strengthened began to emerge as the casualty of the exercise of that power. Slums were directed to be demolished. The workers were not even heard, nor their interests considered, before the closure of industries in Delhi was ordered. Finiteness was endorsed, threatening to leave many victims of Bhopal untended. And, the "conflicting interests" of the oustees of the dam project across the Narmada and the "people of Gujarat" was resolved by allowing construction to restart up to the height of 90 metres, even while observing that in Madhya Pradesh "it is indeed surprising that even awards (concerning resettlement) in respect of 6 villages out of 33 villages likely to be affected at 90m dam height have not been passed."

There was a lexical priority that was established in the early 1980s which was based on a recognition of the right of every person to constitutional relevance. In the 1990s, however, where conflicting interests were perceived, the lexical priority was re-ordered; the slum-dweller, the working classes and the dam-displaced were exiled to the margins of the court's concern, or outlawed altogether.

The constituency of the court appeared to have changed. What perhaps aggravated the sense of injustice, even anger, was the characterisation of the poor as drawn by the court. "Rewarding an encroacher on public land with a free alternative site is like giving a reward to a pickpocket," the court observed in February 2000. The likening of a slum-dweller to a pickpocket was a definite statement of prejudice and contempt emanating from the court. In 1985, even as the Supreme Court sanctioned the eviction of pavement-dwellers in the Olga Tellis case, the court had said: "The eviction of the pavement or slum-dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds dear in life. Humbler the dwelling, greater the suffering and more intense the sense of loss." The pickpocket metaphor was a definitive departure from the acknowledgement of the fact that the poor too strive to survive, and that their struggles deserve respect and support.

In the same breath as the court castigated slum-dwellers for taking shelter on land on which they were encroachers - that is, land which they had not paid for and purchased - it said: "Land-owning agencies like DDA or the government of the National Capital Territory of Delhi are demanding market value of land of more than Rs.40 lakhs per acre before the land can be transferred to Municipal Corporation of Delhi (MCD). It is as much the duty of MCD as that of other authorities to see that sufficient sites for landfills to meet the requirement of Delhi for the next twenty years are provided. Not providing the same because MCD is unable to pay an exorbitant amount is un-understandable."

The cynicism immanent in the attribution of criminality to the slum-dwellers because they had not paid the price of land, while directing that land be released free of cost for garbage dumping, was not lost on many.

It is this turnaround in the exercise of judicial power affecting millions of people on whom 'legality' and the power of the law were directed to fall as does a hatchet, that has provoked reaction.

When the court records in the Narmada decision that "even the interim report of Mr. Justice Soni, Grievance Redressal Authority for the State of Madhya Pradesh, indicates lack of commitment on the State's part in looking to the welfare of its own people who are going to be under the threat of ouster and who have to be rehabilitated," and yet proceeds to permit the raising of the dam to 90m, comment was inevitable. The issues that the Sardar Sarovar Project across the Narmada raise are fundamental and demand debate if democracy is to have content.

Moreover, having punished Arundhati Roy for contempt for speaking out of turn, the court will find itself confronted with Professor S.P. Sathe's question: "Should the law of contempt not reflect greater tolerance towards criticism and greater freedom of action for social activists? Greater tolerance of criticism and thereby greater regard for freedom of speech and greater understanding of the multiple strategies that social movements have to employ is expected from the court" (S.P.Sathe, Judicial Activism: Transgressing Borders and Enforcing Limits, Oxford University Press, New Delhi, 2002).

There is more that this seasoned observer, commentator and teacher asks: "To whom are the judges accountable? When we allow the court to acquire so much power, the question that arises is, to whom is the court accountable and how is such accountability reinforced?" And he says: "The answer according to me is that a constitutional court has to continuously strive to sustain its own legitimacy. Through impartial and principled decisions, it sustains people's faith in it. The accountability is also sustained through the court's concern for the poor, the disadvantaged, and powerless minorities. Juristic as well as popular criticism of the court's decisions is necessary for channelising communication between the court and the people. A constant feedback of public opinion alone will help it remain on the right track."