Judicial activism

One of our national dailies reports that Madras High court has ordered a CBI inquiry into what is a quintessential internal affair of IIT Madras, namely the process of appointing faculty [1]. The process of selecting students and appointing faculty are vital to any university health and must be a prerogative of the university. It may be true that all committees do not always act in good faith given how deeply dependence and patronage is rooted in our society but even if they act in good faith, the decision may not be agreeable to all. Speaking of German universities nearly a hundred years ago, the sociologist, Max Weber, had observed, "No university teacher likes to be reminded of discussions of appointments, for they are rarely agreeable". We Indians loves to be argumentative; reaching consensus becomes very hard. To make matter worse, suspicions and allegations of caste prejudice and other forms of bias have become endemic.

It is rather surprising that judges are so keen to intervene into others institutions at the time when they are expressing concerns freely about the possibility of encroachment on their own autonomy by the introduction of Judicial Appointment Commission Bill by the government. Many times courts seem too eager to intervene into the affairs of other public institutions, conveniently forgetting that, in democracy, it is not enough to be jealous of one’s autonomy, one should show respect for the autonomy of others as well.

One needs not tell our judges that autonomy of their courts is of paramount importance if courts are to function properly and efficiently, and if they are to discharge their duties without favor and fear. It seems reasonable to me if judges are constantly on guard against, not to say paranoid about, any possible encroachment on autonomy, for there are always some people in the position of power and influence who might sincerely believe that they know better what is good law for their society than any salaried government employee. Many times our judges show a surprising lack of awareness of the fact that others might be thinking the same about them when they do the same with others. No doubt that indifference to the condition of institutions hurts them bad, but the relentless desire to direct change in them from outside will hurt them no less.

I understand the public has put a lot of faith in higher judiciary and higher courts. On the whole our judiciary have performed well to earn such a large public trust. We trust judiciary more than the executives; and it is on display for everyone to see. It presents itself in the form of  Public Interest Litigation of both serious and frivolous nature, and the shifting of tone from policy-based to right-based approach, the later can be enforced by judiciary while the former is in the hand of executives who can not be trusted. It did not take long for judiciary to sense how high they stand in public eye and naturally this made their transition to “activist mode” less uncomfortable. While speaking at IIT Bombay in March 2009, Justice Ahmadi made a comment in passing that the judicial activism in its aggressive form has to be a temporary phenomenon. But unfortunately the temporary in India has its own uncanny way of becoming permanent.

Public need not to be right about the corruption and decay in institutions all the time. And who’s to say what satisfies some members of public, no matter how well-meaning they are in their intention and belief, is also good for the health of an institute in long run? If good things can be said about the judicial restraint in good time, something  good can also be said about it in bad time.  It is doubtful if a CBI inquiry will make the process of appointing faculty more efficient and (needlessly) more “transparent” but it will surely make the appointment committee not let discharge its duties without fear. They will pick the safe candidate over the good candidate; safe candidate being the one who looks good on paper and whose selection neither involve any application of mind nor can be challenged in the court.

Behind all this, there seems to be a belief, perpetuated by social activists and many other well meaning members of civil society, that no committee comprising just men can be fair to a woman candidate and no committee comprising only members of high-castes can be fair to a candidate of low-caste. This is unfortunate for the spirit of “fair-play” is on increase in our society and public display of feelings are not going to nurture this plant. Serious practices of discrimination based on caste, religion, sect, family and gender are reported from many places in our society and one can hardly deny that even the better places are not free from it but we should not forget that tolerance of such acts are also on decline in our society. Moreover one must not lose sight of the fact that discrimination can also happen on the ground of ability, merit and talent. It usually does not take much to paint the discrimination based on merit, ability and talent as a discrimination based on gender and caste.

The root problem, the way I see is, lies somewhere else. Politics is on full display on our university departments these days which had been nurtured by white-collar trade unions among teachers. We must ask ourselves, what makes transition of a department from a politically-neutral if not politics-absent to a politically-charged one? Over the time, the middle class intelligentsia with some help from judiciary has built a hypothesis that numerical-quotas are the only way to achieve equality in our caste and class ridden hierarchical society, or as they would like to put it, the only way to achieve social justice. Something can definitely be said in the favor of numerical quotas for tribals and dalits for they alone have suffered a kind of psychological and social discrimination – isolation in the case of former and segregation in the case of later – which needs to be compensated. Even here, cost may outweigh the benefits. Giving numerical quotas to so many communities which have significant number of their members in middle class — and now extending them to women — in the name of social justice is nothing but, as late Justice Gajendragadkar called it, “a fraud on the Constitution”. Would it not be a good time to ask ourselves how much some individuals have gained from numerical quotas and what cost our institutions have to pay for enabling them making such gains? Are there some psychological or social studies which proves that we must have “equality among the castes” before we can have the “equality among the individuals” or among households? Numerical quotas has little to do with social justice or equality; they are essentially an instrument to distribute power among the section of society. They might have a place in parliament and other elected bodies where pursuit of power is one of the major aim, whether to bring changes in the society or for petty personal gains. But as far as universities, hospitals, research labs, courts and similar other institutions are concerned where pursuit of power is not and ought not to be the cherished goal, where pursuit of ideas must also count for something, these quotas have no place in them. And if they have any place in them, it is essentially to provide caste and politics for all.

Higher judiciary does not like to intervene to lower the unrelenting pressure on our universities to accommodate the demand of “social justice” from one or other section of society but it needs not make it hard for universities to cope with it. In a society, which pays or ought to pay attention to "law and order", courts are very important institutions, but they are not the only import institutions. No matter how highly they stand in public eye today, judges are not the only person responsible for the health of a society. Teachers, scientists, writers, doctors an many others have their important sphere. The condition and demand of work differs for each professions and therefore a certain autonomy
for formulating policies, taking actions and devising rules must be granted to their institutions. This much should be plain to our judges but many times they show a surprising lack of it when they speak in a charged tone about other institutions from the bench. The courts do not always have the capacity to determine what the exercise professional judgment entails in these institutions. And at-least for this reason only, they should restrain from exceeding what is granted to them by the Constitution. Impotent and dysfunctional courts who act like mute spectator to the rot and corruption in public institutions will hurt us badly. But would they serve us well if they choke off all the initiatives and innovations in major institutions of society by always maintaining a habitual intimidating stance?

References :
[1] IIT-Madras is attempting to cover up irregularities’, The Hindu, Sep 13, 2013

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