No trivial pursuits

sukumar muralidharan | Updated on January 23, 2018

At loggerheads: Prime Minister Narendra Modi and Justice HL Dattu at the joint conference of chief ministers and chief justices in New Delhi. Despite Modi’s remarks on ‘five-star activism’, the possibility of conflict with the judiciary is not immediately imminent. Photo: Kamal Singh

Sukumar Muralidharan

Will the judiciary’s ‘five-star activism’ in matters of the government become an encumbrance too heavy to bear?

Prime Minister Narendra Modi’s widely quoted remark from a recent conference with the higher judiciary led to some mirthful protest involving a popular chocolate brand. It also led to some worry. The particular brand of chocolate advertises itself as an agent of extreme passivity, inducing a mood of distraction and forgetfulness. But it was not passivism, but “five-star activism” that bothered the Prime Minister.

To appreciate the significance of “five-star activism” in the Prime Minister’s vision, the phrase has to be restored to context. In a 35-minute address in Hindi, the PM used the term twice. He began by likening judicial work to some manner of a divine mandate, but halfway through, he reduced it to a far more trivial pursuit. “Rendering justice within the parameters of the law is an easy matter”, he said. “Judges have that power of discernment which comes from the opening of the ‘third eye’”. Yet it was not always so easy distinguishing perception and reality, and it was necessary to ask if the judiciary was not being driven by “five-star activists”.

A little ahead, the theme reappeared with a slight variation, but the inherent illogic remained. How would it be that the “third eye”, which enables the judge to decide a matter within the complex and constantly shifting parameters of the law, should fail in the far simpler task of telling reality from perception?

If the speech left room for ambiguity, a look at governmental actions may help divine its intent. Just days after Modi’s speech, the government froze the environmental campaign group Greenpeace’s permission to receive donations from abroad, on grounds that it had been engaged in improper political activity. This was, evidently, a pushback against an adverse judicial verdict.

On March 12, the Delhi High Court had ruled illegal a government order disallowing Greenpeace volunteer Priya Pillai from travelling abroad. The government used the broad brush of “anti-national” activity to justify its action. That rationale was summarily thrown out of court. The petitioner could not be categorised as “anti-national” because she was assisting “tribal communities to claim their rights”, ruled the court. “Espousing a cause of a particular section of people could not be considered as anti-national or creating disaffection amongst people at large”. “Restrictions on criticism of government policies or programmes whether in India or abroad” moreover, should “if at all, apply only to government servants”.

The term “anti-national” though, had become common currency and gained new energy in the media discourse. A recurrent theme in the overwrought nationalist discourse is the implicit rebuke to India’s institutions when debates over domestic policy are taken to overseas forums. Yet, on a common-sense reading, there is an obvious element of non sequitur here. Incapacities at various levels are already declared in the fact that India regards a foreign company’s security of investment as a domestic policy priority.

Another recent and conspicuous failure of institutional integrity was the March 21 acquittal of 16 police personnel brought to trial for the killing of 42 men of a certain faith in Hashimpura, Meerut district in May 1987. That conformed to a depressing tale of impunity for acts of communal violence, which has with few exceptions, been the settled pattern since Independence. Teesta Setalvad and Javed Anand have proved that another institutional response is possible. It remains a partial success, but convictions handed down in two particular incidents within the 2002 Gujarat pogrom, the Best Bakery and Naroda Patiya killings, go some way towards establishing the forgotten principle that the institutions of justice should work for everybody alike.

Setalvad and Anand, executive trustees and the main organisers of Sabrang and Citizens for Justice and Peace, had arrest warrants issued against them by a Gujarat court in February on allegations of financial misappropriation. They were granted a temporary reprieve by the Supreme Court, but just days after the PM focused his ire on five-star activism, the Gujarat government sent a report to the Home Ministry, complaining that one of their donors, the Ford Foundation, had been interfering in the Indian political process. The Supreme Court meanwhile, is declining any manner of unconditional relief. A newly consituted bench, on April 22, extended anticipatory bail for Setalvad and Anand, but only for three months.

Against this mixed background, Modi’s remarks do not presage any immediate possibility of conflict with the judiciary. But by way of comparison, a reference may be made to a phase of active conflict that opened with the adoption of the constitution in 1950, when the judiciary struck down early government actions in two realms of particular concern: land redistribution and affirmative action.

This sequence of decisions triggered the first amendment to the constitution, which Prime Minister Jawaharlal Nehru introduced in 1951 with words that have become famous: “Somehow, this magnificent constitution that we have framed was later kidnapped and purloined by the lawyers”. The first amendment was adopted with specific intent to increase the zone for autonomous action by the executive, and minimise the encumbrances of judicial oversight. The purpose was to advance the cause of distributive justice, which the judiciary had with its narrow focus on property and privilege as eternal, rather than inherited, rights seemingly set its face against.

The conflict did not by any means end there. It mutated and intensified through the ’60s. But from about the mid-’70s, a greater degree of sympathy towards distributive justice was evident as the bench itself changed character. From the ’80s onwards, the terrain of contest shifted towards executive accountability and the enforcement of basic rights. Ironically, this happened at a time when the executive branch began turning its back on the redistributive intent of earlier years. The judiciary today may be willing to accept these broad parameters of policy, but its insistence on the fundamental rights and the principle of accountability could well be an encumbrance too heavy to bear.

( Sukumar Muralidharan is a fellow at the Indian Institute of Advanced Study at Shimla )

Published on April 24, 2015

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