on April 9 by prime minister Manmohan Singh that "the dividing line between judicial activism and judicial over-reach is a thin one" and should not be crossed, followed by chief justice of India K.G. Balakrishnaâ€™s cool response to the effect that tension between Parliament and the judiciary is "natural and to some extent desirable", has caused widespread dismay among political pundits and champions of Indiaâ€™s faux democracy.
Such dismay is unwarranted. On the contrary, the public interest is better served by intensification of the incomplete national debate on the respective roles of Parliament, the judiciary and the Constitution of India. Within both houses of Parliament in New Delhi and legislative assemblies of constituent states of the Indian Union there is a pervasive â€” and erroneous â€” belief that elected legislators have unrestricted right to enact legislation which they believe is in the larger public interest. On the other hand the higher judiciary has always maintained through several rational and well-reasoned judgements, that legislation which alters or abridges fundamental rights conferred upon all citizens and minorities in particular, is illegal and void for violating the Constitution, which is supreme.
Unfortunately even as this issue is being debated and awaits resolution, the somewhat gullible justices of the Supreme Court seem to be insufficiently aware that through the simple expedient of not filling judicial vacancies in the higher and subordinate courts and starving the judicial system of funds, wily, self-serving politicians have already won half the battle by arousing public hatred, ridicule and contempt for the judiciary. These days it is commonplace for politicians and the citizenry to excoriate the judiciary for the lawâ€™s horrific delay, and the alleged tardiness of judges to clear the backlog of 25 million-plus cases pending in courts countrywide.
Surprisingly, judges and lawyers who constitute the backbone of the countryâ€™s much-maligned justice system are silent about this flagrant political conspiracy to starve the courts into submission. Surely they are aware that post-independence Indiaâ€™s infamous reputation for the lawâ€™s delay is rooted in the nationâ€™s 10 per million judge-population ratio as against 107 per million ratio in the US and 50 in the UK. Moreover it is pertinent to note that annual government expenditure on maintaining the judicial system aggregates a mere 0.2 percent of GDP in India (cf. 4.3 percent in Britain).
Justice V.S. Malimath, a former Supreme Court judge estimates that to become fully effective, Indiaâ€™s ramshackle justice system requires the immediate appointment of 1,500 high court and 18,000 subordinate court judges with requisite supportive infrastructure. It is incumbent upon the bar and bench to insist â€” on pain of closing down the courts â€” that the justice system is brought to full strength. This is the non-negotiable prerequisite of restoring citizensâ€™ faith in the rule of law.