How to Check Judicial Activism

Dear Priyaranjan Das Munshi and Vayalar Ravi

At a time when most people are expressing delight at judicial activism to catch crooks in politics, you have expressed dismay. You say the old harmony of relations between the legislature, executive and judiciary is breaking down, you want a special session of Parliament to discuss the matter. Many people and newspapers have castigated your proposal, and I too was initially appalled. But on second thoughts, I can see several advantages in such a move.

\The two of you have written a letter to the Prime Minister saying that recent acts of judicial activism have ‘created the impression of superiority of the judiciary over the legislature.’ This is certainly not the impression that ordinary citizens have. We have the impression that the courts are finally implementing laws relating to bribes, nepotism, forgery, cheating, conspiracy and so on. Correct us if we are wrong, but we are under the impression that these laws were enacted by legislatures, not by the judiciary.

So, the judges are merely implementing the will of the legislature instead of ignoring it, as they have done for many decades. The judiciary has not become superior to the legislature, it is at long last taking the legislature seriously. Of course, this is very uncomfortable for some crooked legislators, but that is the whole point: when legislators break laws enacted by legislatures, the legislators should go to jail.

Judges have not suddenly dreamed up the concept that politicians should not accept kickbacks or make arbitrary allotments of petrol pumps. The concept has been codified into law by legislatures. The same legislatures provide that all are equal before the law, including even MPs.

Now I can see that this was extremely shortsighted on the part of the legislators in the old days. The silly chaps, surely they should have inserted special provisions exempting themselves from prosecution for such minor matters. Surely they should have acted on the fundamental democratic principle that MPs have a fundamental right to engage in bribery, forgery, conspiracy and what have you.

Unfortunately, they failed to do so. Very selfish to them, they lacked the vision to see what consequence it might have for their successors. You note in your letter that “the first Constitutional amendment itself was to assert the right of Parliament to make enactment for economic development and social justice.” Quite so, but what did Jawaharlal Nehru and those jokers do with these powers? Why, they enacted laws making it illegal to accept kickbacks and indulge in nepotism. The fools. With the wisdom of hindsight, you can see today that Nehru and co were very naïve and unrealistic. You may well ask, how on earth is it possible to conform to the Constitutional concern for economic development and social justice if MPs are deprived of all avenues of making money and creating patronage networks? Any judiciary which ignores this basic question is heading or a confrontation.

So I think it is entirely appropriate that you should summon a special session of Parliament on this issue. Such a session must not limit itself to mere talk—it must act purposively. Indeed, it should last as long as is necessary to pass some urgently needed legislation. These new laws should clarify the rights and privileges of legislators, thus ensuring that no judge can erode them in future.

I humbly submit the following list of ideas that may be incorporated in fresh legal amendments.

  1. All ministers are legally entitled to give verbal guarantees up to the sum of $100,000 in respect of assurances made by their associates, whether to NRIs or residents. No refunds can be claimed on the ground that the promised deals did not materialise. Not liability will attach to the said ministers in such an event. The said sum of $ 100,000 will be at 1983 prices, and be indexed to the cost of living in subsequent years.
  2. All ministers will have a quota of one forgery per term of office. In the event these are aimed at Opposition leaders, the number of permissible forgeries may extend to two, since this will be a special case, which promotes competition between parties, and we all know that is the very bedrock of democracy.
  3. All ministers must be permitted kickbacks of up to 5 per cent of approved contracts. This provision shall in no way be affected if the party treasurer declares that the money was not for the benefit of the party. Where the sums are certified by the treasurer to be for the benefit of the party, the permissible kickback may be increased 10 percent of the contract or Rs 100 crores, whichever is higher.
  4. All politicians shall be permitted to keep loose change in their houses up to a ceiling of Rs 3.6 crore (in 1996 prices, to be indexed for future inflation). No explanation need be given by politicians for possession of such trifling sums.
  5. All politicians with a rural background shall be entitled to allocations for fodder from the animal husbandry department. Farmers have been discriminated against for too long, they are starving and need something to fill their bellies. As the poet Ogden Nash has said “Our daily diet grows odder and odder: one man’s food is another’s fodder.

This is of course, only an indicative list. I have no doubt that with your wide experience you will be able to add many more such amendments in keeping with the democratic traditions for which the Congress Party is rightly famous. That will finally bring about harmonious relations between the legislature and judiciary. Then you can at last, without fear, get on with discharging your Constitutional obligation to promote economic development and social justice.

What do you think?