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Ravinder Gehlaut and his wife, Shilpa Kadiyan, were forced to flee for their lives after their marriage was deemed sinful by a village council because they belong to the same clan. (Mustafa Quraishi/Associated Press/Mustafa Quraishi/Associated Press)
Ravinder Gehlaut and his wife, Shilpa Kadiyan, were forced to flee for their lives after their marriage was deemed sinful by a village council because they belong to the same clan. (Mustafa Quraishi/Associated Press/Mustafa Quraishi/Associated Press)

Indian top court's startling foray into judicial activism Add to ...

The Indian Supreme Court’s recommendation that perpetrators of “honour killings” face the death penalty is the latest in a series of extraordinary decisions by the court, which in recent months has taken judicial activism to new heights. With the Indian government hamstrung by a series of scandals and parliamentary squabbles, the court has emerged as a sort of de facto government, taking charge of investigations, ousting corruption-tainted officials, and making liberal rulings on critical social issues.

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“The Supreme Court is the only hope people have – it’s the only institution that seems to be doing anything,” said Prashant Bhushan, a Supreme Court advocate who has brought many of the country’s highest profile “public interest litigations” before the bench.

India’s highest court has for decades operated in parameters much more broad than those in most other democracies. In the 1980s the court pushed government repeatedly on social issues and poverty; in the 1990s, it acted as a champion of the environment.

But legal observers say this most recent period of activism is extraordinary.

The court has, of late, approved “passive euthanasia” (withholding the means of continuance of life) in some terminal cases – a step in sync with much popular sentiment here, but a sensitive issue (like gay rights) that the government has refused to touch. It took similar steps in rulings on sexual harassment cases. It has ordered government to overhaul adoption legislation that leaves millions of orphans stuck in institutions, and to reconsider the poverty line.

But it is the issue of corruption that has pushed the court to extremes. The government of Prime Minister Manmohan Singh has, for the best part of a year, ricocheted from one multimillion-dollar graft scandal to the next, and the Supreme Court, in a startling break from precedent, has essentially taken over handling of the issue.

The court gave itself supervisory control over the investigation of the so-called “2G scam” – in which the telecommunications minister is alleged to have cost the country $39-billion by selling cellular network licences cheaply, in exchange for millions of dollars in kickbacks. When the government proved inept – perhaps deliberately so – at handling the early days of the investigation, the court ordered the Central Bureau of Investigation to report directly to the bench on its findings. It created a one-off special court to try disgraced telecom minister Andimuthu Raja, and other senior government figures, who have since been detained in connection with the case.

Similarly, the Supreme Court has launched an extraordinary investigation of “black money” – billions of rupees in undeclared, untaxed cash held in accounts outside India by wealthy and powerful individuals, many of them with close ties to government – after the executive failed to take what the court considered appropriate action on the issue.

In March, the court struck down the Prime Minister’s appointment of P.J. Thomas as “central vigilance commissioner” – a sort of anti-corruption czar. Chief Justice Sarosh Homi Kapadia handled that case himself; reading his judgment in a public-interest litigation case that opposed Mr. Thomas’s appointment, the Chief Justice lambasted the decision to give him the job (pushed by the Prime Minister and Home Secretary) given that he is the subject of a corruption investigation himself.

“The court is not running the country, but it is saying to the executive, ‘You should be running the country according to the laws,’” said Soli Sorabjee, a former attorney-general of India, now a legal affairs columnist. “It’s the job of the Supreme Court to see that the executive functions within its power and acts when it has a duty to act – what it is their duty to do is a matter of subjective judgment to some extent.” In other words, the Supreme Court can make just about anything its business.

Nirmala Sitharaman, speaking for the opposition Bharatiya Janata Party, recently lauded the court for “correcting the executive’s failure.” But the court isn’t playing politics: it was pre-emptory in tone, a few months ago, when it summonsed the BJP’s leader, L.K. Advani, to answer questions pertaining to the inflammatory demolition of the Babri mosque in 1992.

Upendra Baxi, professor of law in development at the University of Warwick in England and an expert on Indian judicial history, said today’s Supreme Court is an “extraordinarily innovative judiciary.” He noted that the court “does not act by itself, it is the people who bring problems to the court” but that the Supreme Court frequently allows itself to be “moved by human suffering” and has broadened the definition of human rights to include suffering caused by governmental lawlessness and corruption.

The most remarkable aspect of recent events, he said, is “the articulation of judicial indignation,” the most notable example of which must be a comment from the Chief Justice himself, who in a recent hearing on the 2G scam demanded of government lawyers, in his booming voice, “What the hell is going on here?”

“Judges are expressing the mood of the nation,” Prof. Baxi noted dryly.

Government is starting to push back, he said, charging that judicial activism is “undemocratic and unbecoming”; several cabinet ministers have of late accused the justices of “overstepping.”

Prof. Baxi rejects that idea: “Overstepping always implies a set of demarcated boundaries; those boundaries may work for settled, liberal societies like Canada … But India is only 60 years [old]and is a work in progress … it is not right to say that lines are crossed, because the lines have yet to be drawn.”

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