Judge as Administrator

Videh Upadhyay (Changing Judicial Power: Courts on Infrastructure Projects and Environment, October 28, 2000), discusses at length what he calls the ‘judicialisation’ of Indian public life. Dwelling on the expansion of ‘the judicial power in India’ he notes the shift in Indian courts’ attitudes and behaviour, from ‘scrupulous non-interference’ to increasing intervention and usurpation of executive and legislative powers. As Upadhyay notes, the separation of powers of the judiciary, the legislature and the executive constitutes a prime basis for governance in most modern nation states. It constitutes one of the lasting legacies of the French and American Revolutions, and represents a sharp break in the political evolution of modern societies. Through this separation, each branch works according to its own authority, forming a check or balance against any abuse of power by the remaining two branches. In many developing countries, the abuse of power by political leaders, corruption, ‘inefficiency’, plain bad governance, or apathy towards people’s problems by bureaucrats or government officials has led to increasing intervention by the judiciary, in issues or matters that can be settled at a purely administrative level, or by institutions and groups in civil society through political dialogue. Thus, courts are asked to decide on the birth place of a god, on shutting down polluting industries, on ‘backwardness’ of communities, on environmental issues, on resettlement, and on what constitutes ‘public’ interest’ – all as part of efforts to control or restrict the activities of legislators, executive officials and various parties in civil society from causing damage to the good life and enjoyment of the middle classes in India.

The latest in this series is the judgment of the Honourable High Court of Maharashtra on the payment of Diwali ex gratia (bonus) to Municipal workers of the Brihanmumbai Municipal Corporation (BMC). The alacrity and speed with which the court granted a stay on the payment of ex gratia, and the language used in questioning the union respondents make one think that the main purpose of granting relief was not to judiciously intervene in the matter but rather to ensure security of consumption for the great consuming classes of this country – the middle and upper middle classes. The Indian security forces were on ‘stand by’ when the Babri masjid was demolished and when riots claimed thousands of lives in Mumbai in 1992-93. The courts did not then think it wise to intervene and protect its citizens. But if the BMC goes on strike again the court has warned that the armed forces will be brought in to ‘take over the civic services’, presumably in order to ensure that ‘Mumbaikars’ are not denied their right to consumption and are allowed to consume in peace. Presumably also then, Mumbaikars includes only the middle class consumers of this metropolis, and not its workers, as the court as well as the media keeps railing against the ‘greedy’ unions holding the city ‘to ransom’, all in the name of Mumbaikars.