LAW RESOURCE INDIA

Judiciary to the rescue

Posted in JUDICIAL ACTIVISM, JUDICIARY, JUSTICE by NNLRJ INDIA on April 4, 2011

Supreme Court of India

Joginder Singh in THE DAILY PIONEER

With the political class exposed as overwhelmingly corrupt and cynical, the judiciary alone can uphold the Constitution and protect the people.

With the Supreme Court becoming proactive in monitoring cases of corruption against the high and mighty and ticking off the Government and the CBI for their indifferent attitude towards such cases, Prime Minister Manmohan Singh is predictably feeling ill at ease. Recently, he dropped his mask of reticence and fired a salvo against judicial activism by calling upon the judiciary not to exercise its power of judicial review to undermine the legitimate roles assigned to other branches of the executive and the legislature.

Speaking at the 17th Commonwealth Law Conference in Hyderabad, Mr Singh said, “Our judges, while interpreting laws, have also widened their scope and reach as lawgivers…. The judicial process has a dynamic role to play both as the guarantor of justice to litigants and as upholder of the constitutional conscience. But at the same time, it has to be ensured that the basic structure of our Constitution is not subordinated to political impulses of the moment or to the will of transient majorities.” Underlining the need for the judiciary to adapt itself to a fast-changing world to retain its relevance, Mr Singh said the role of courts and judges in making law an instrument of social stability and progressive change cannot be over-emphasised.

Earlier, Chief Justice of India Justice SH Kapadia had appealed to Government to change its approach of ‘equality’ while implementing policies and rather focus on serving people on the basis of their needs. “If we take equality as a basis, our resources may not be sufficient … Our limited resources should be spent in such a method that food, education and healthcare are made available, at least to those living below the poverty line, taking deprivation as a yardstick.”

Mr Singh, perhaps as an afterthought, later acknowledged the efforts of the Supreme Court for delivering several landmark judgements in public interest litigation cases which are now part of the evolution of India’s constitutional jurisprudence.

The truth is that the Government feels uncomfortable and embarrassed when its partisan decisions are challenged and nullified by the judiciary. Left to itself, the Government of the day would never have ordered an inquiry into the 2G Spectrum loot as it was afraid of losing power in the event of withdrawal of support by its coalition partner, the DMK. The former Minister for Telecommunication, A Raja, not only ignored the suggestions of Union Minister for Law M Veerappa Moily and then Minister for Finance P Chidambaram, but also defied the Prime Minister’s instructions. His successor, Mr Kapil Sibal, has trashed the Comptroller and Auditor-General’s report, suggesting that the loss to the exchequer was ‘zero’ and not a presumptive `1.76 lakh crore as indicated by the CAG report.

In this age of coalition politics, for any Government, irrespective of the party in power, survival has become more important than probity in public life. There are men of principles in all political parties but there is no party of principles. Today, the truth is determined by majority votes and not on the basis of facts.

The judiciary is an important pillar of any democracy. In India, it has performed creditably and stood the test of time in spite of what self-serving politicians might say. But for judicial intervention, many wrongs would never have been set right.

Forget the 2G Spectrum loot, even the Commonwealth Games swindle or the Adarsh Cooperative Housing Society scam would not have seen the light of the day if not for intervention by the courts. So also the appointment of Mr PJ Thomas as the Central Vigilance Commissioner. He got the coveted job despite being charge-sheeted in the palmolein import scam while serving as Secretary in Kerala’s Department of Food and Civil Supplies.

Interestingly, in the case of the appointment of a new chief of ONGC, Mr Thomas withheld vigilance clearance on the ground that three MPs had brought allegations against the candidate. However, the MPs who had reportedly written the letters later said those were forged letters. The appointment of the CMD still hangs in the balance while the appointment of the CVC has been quashed by the Supreme Court.

Rules are bent and violated blatantly to suit and please politicians. The Maharashtra Government was embarrassed when it came to light that politicians were trying to influence police officers to get their supporters, arrested for committing criminal offences, released from police custody. The Supreme Court issued strictures against the State Government, taking cognisance of a telephone conversation between then Chief Minister Vilasrao Deshmukh and a police officer.

Subsequently, Maharashtra’s Home Department issued a circular, asking investigating officers not to mention in diary entries any telephonic conversation they may have had with politicians and legislators. The circular said that officers should be careful as diary entries are often submitted as affidavits in the courts and cause embarrassment to the Government.

What can be said with some surety is that crime cannot be hidden for long. It is but natural that politicians will feel unhappy when pulled up by the judiciary. The judiciary’s job however, is not to please politicians but to uphold the law of the land.

Despite rumblings in political parties, it should be remembered that the judiciary has by and large acted creditably. Its decisions are independent of political compulsions. India has adopted a universal democratic pattern under which it is perfectly within the domain of the judiciary to tell other branches of the state what they should be doing, where they have transgressed and what are their limits of power.

Instead of finding fault with the judiciary, the Prime Minister and his Government would do well to ensure speedy justice for the common man. The Supreme Court has recently observed that “no Government wants a strong judiciary… The system has already become sick. What can be the expectation of the common man for speedy justice? Even in the Supreme Court, a special leave petition takes eight years to reach the final hearing. We all give sermons. We go to the National Judicial Academy and give lectures to judicial officers asking them to speed up disposal of cases. But where is the infrastructure? They are already under heavy burden. There are only lectures, committees and commissions, but no solutions… Look at the budgetary allocation to judiciary. It is not even one per cent. That is the commitment to the judiciary”.

In the 10th Five-Year Plan (2002-07), the allocation for judiciary was `700 crore which was 0.07 per cent of the total Plan outlay. Most of the State Governments earmark less than one per cent of their Budget for the judiciary. In spite of that our judiciary has done what it is supposed to do — that is to uphold the Constitution and protect people from injustice.

In an ideal situation, the judiciary will refrain from intruding into the domain of the executive and the legislature and stick to applying and interpreting the law. But when there is cynicism about the seriousness and impartiality of the Government in stemming corruption, maintaining checks and balances as has been mandated by the Constitution becomes imperative. Irrespective of what any politician may say or feel, the judiciary must continue doing its job without being swayed by either pressure or criticism.

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