Talk of judicial overreach is bogey: Supreme Court

Supreme Court of India


Rejecting the criticism of judicial activism, the Supreme Court has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly. A Bench of Justices G.S. Singhvi and A.K. Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poor, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result.

Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.”

The Bench pointed out that the orders issued for the benefit of weaker sections were invariably challenged in the higher courts. In a large number of cases, the sole object of this exercise is to tire out those who genuinely espouse the cause of the weak and the poor. Justifying the directions issued by the Delhi High Court for protection of sewerage workers on a public interest litigation petition, the Bench said: “The superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution.”

The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining PIL petitions for espousing the cause of the poor who could not seek protection and vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity.

Beijing statement

Quoting the judiciary’s objectives as mentioned in the 1995 Beijing statement, the Bench said these would include ensuring that all persons were able to live securely under the rule of law; promoting within the proper limits of the judicial function the observance and attainment of human rights, and administering the law impartially among persons and between persons and the state.

Provide safety gear to sewer workers who enter manholes, says Supreme court

Supreme Court of India


The Supreme Court has underlined the need for giving proper equipment, adequate protection and safety gears to sewer workers who enter manholes for clearing blocks. Expressing anguish over the manner in which they were treated by the employers, a Bench of Justices G.S. Singhvi and A.K. Ganguly said: “Given the option, no one would like to enter the manhole of a sewerage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family.”

Writing the judgment, Justice Singhvi said: “The State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place an effective mechanism for ensuring the safety of the workers employed for maintaining and cleaning the sewerage system. The human beings who are employed for doing the work in sewers cannot be treated as mechanical robots, who may not be affected by poisonous gases in manholes.”

The Bench said: “They risk their lives for the comfort of others. Unfortunately, for the last few decades, a substantial segment of the urban society has become insensitive to the plight of the poor and downtrodden including those, who on account of their sheer economic compulsions, undertake jobs/works which are inherently dangerous to life.“People belonging to this segment do not want to understand why a person is made to enter manholes without safety gears and proper equipment. They look the other way when the body of a worker who dies in the manhole is taken out with the help of ropes and cranes.“It will be a tragic and sad day when the superior courts shut their doors for those, who without any motive for personal gain or other extraneous reasons, come forward to seek protection and enforcement of the legal and constitutional rights of the poor, downtrodden and disadvantaged sections of society.”

Silent sufferers

The judges said: “If the system can devote hours, days and months to hear the elitist class of eminent advocates who are engaged by those who are accused of evading payment of taxes and duties or committing heinous crimes like murder, rape, dowry death, kidnapping, abduction and even acts of terrorism or who come forward with the grievance that their fundamental right to equality has been violated by the State and/or its agencies/instrumentalities in contractual matters, some time can always be devoted for hearing the grievance of vast majority of silent sufferers whose cause is espoused by NGOs.”

In the instant case, on a Public Interest Litigation plea from the National Campaign for Dignity and Rights of Sewerage and Allied Workers and others, the Delhi High Court gave a series of directions to the Delhi Jal Board for the safety and protection of sewer workers and also ordered payment of compensation to the families of those who died after inhaling poisonous gas in manholes. The appeal is directed against this order. Dismissing the appeal, the Bench deprecated the attitude of the public authority for frustrating the effort made by the respondent (petitioner in the High Court) for getting compensation to the workers who died due to the negligence of the contractor, to whom the work of maintaining the sewers was outsourced. The Bench directed implementation of the High Court directions within two months and sought a compliance report.

Govt to seek recall of SC black money verdict


NEW DELHI: The Union government on Thursday decided to move Supreme Court seeking total recall of its stinging judgment taking over the probe into black money while accusing the government of probing the sensitive economic issue laggardly. Riled by the appointment of a Special Investigation Team (SIT) headed by a retired judge of the apex court, the Centre will on Friday file an application faulting the judgment on the ground that it amounted to the judiciary taking over the executive’s statutory functions and that the entire order be scrapped.

The application drafted by the finance ministry traces case laws to drive home the sanctity of separation of powers under the constitutional scheme and says the July 4 judgment by Justices B Sudershan Reddy and S S Nijjar violated the cardinal principle. The government will argue that the executive was not laggardly in its approach to tackle the black money issue as it had respected the court’s sentiments and constituted a high powered committee (HPC) to tackle the menace.

The court while adopting the members of the HPC in its SIT, had included the Director of Research and Analysis Wing (RAW). The Centre objected to this saying RAW Director had always been a “faceless and nameless person” given the sensitiveness of the post. “How can the RAW Director be included and made answerable to the retired Supreme Court Judge who heads the SIT?” the Centre asked.

The government also took objection to the stinging criticism in the first 20 paragraphs of the judgment authored by Justice Reddy appointing former Judges – Justices B P Jeevan Reddy and M B Shah – as chairman and vice-chairman of the SIT. It said the first 20 paragraphs have been written by the bench without any arguments being advanced by then solicitor general Gopal Subramaniam, who has since resigned. Subramaniam had faced flak in the ministerial circles for the adverse order.

The SC had on July 4 stunned the Centre by slamming it for lacking in vigour to probe black money and took over the probe by setting up multi-discipline SIT to investigate the crime in India and abroad as well as accused Hasan Ali Khan. It had directed the Centre to reveal names of Indian who stashed unaccounted money illegally in foreign banks provided they have been issued show cause notices by tax authorities after completing proceedings against them.

It also dismissed as bogey the government’s plea that the double taxation avoidance treaty between India and Germany prohibited revealing names of the 26 Indians who held accounts in Leichtenstein Bank. It had questioned the government’s wisdom in allowing UBS, allegedly the most favoured among Swiss banks for Indians to stash black money, to open retail banking outlet in India.

A supreme misjudgment

Supreme Court of India

Arun Jaitely in THE TEHELKA

Arun Jaitley examines the dangers of the apex court verdict on Chhattisgarh SPOs

THE SUPREME Court of India has quashed the appointment of Special Police Officers (SPOs) by the state of Chhattisgarh as unconstitutional and violative of Articles 14 and 21 of the Constitution. The effect of the judgment is that the institution of SPOs working in Chhattisgarh and under similar conditions in other parts of the country would cease to operate. SPOs have been appointed in areas where the environment has been threatened by insurgency to perform the functions of the regular police by protecting themselves and their fellow citizens. In Jammu & Kashmir these SPOs constitute village protection committees, which protect the village communities from insurgents. The same mechanism was effectively used in Punjab during the days of insurgency. SPOs is a system where the members of the community are empowered to protect the community. Policemen cannot be present in every house or every village, Areas where there is an apprehension of breach of peace and security due to insurgency requires the appointment of SPOs.

The Police Act of 1861 provides for the appointment of SPOs. Various state police legislations have similar provisions for SPOs to be appointed. The language of the legislations may be different. Those familiar with the ground realities of India would realise the utility of such SPOs. They supplement the normal police administration.

The judgment of the Supreme Court creates a crisis situation. The state would now have to recover arms back from the SPOs. This would itself be a daunting task. Every SPO realises that he would be on the Maoist hit list. He would have only two options left – either to join the Maoists or to continue to retain his arms to protect himself from the Maoists. Having been identified as an SPO without the backing of the state or arms to protect themselves, these SPOs would now be sitting ducks. The battle against the Maoists has been loaded against the Indian state. Maoists are now laying down terms for grant of amnesty to the SPOs. The vacuum created by their removal cannot be filled easily by the local police. The tranquility in the region is going to be disturbed.

A reading of the judgment of the Supreme Court prima facie indicates that the ideology of the author of the judgment has prevailed over constitutionalism. A legitimate question is whether the courts enforce the constitution or do they enforce ideologies. The Maoists are no reformers. Their principal objective is to destroy India’s parliamentary democracy and establish a communist dictatorship. The Maoists wish to dismantle every established democratic institution. If the Maoists were to take over India, the author of the judgment and other well-meaning judges like him would not be manning the Supreme Court. The court would be controlled by ideology and ideological objects of the Maoists. The judgment itself makes for an interesting reading. It is an ideological rationalisation of why the Maoists exist and fight for their causes. It is a denunciation of those who fight the Maoists.

The judgment states, “The state of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in the same manner and by the same mode as done by the Maoists.” It further states that, “Set against the backdrop of resource-rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance.” The judgment rationalises Maoist ideology by stating, “People do not take up arms, in an organised fashion, against the might of the state, or against human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is echoed in our conscience, we seek an order. However, when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.”

THIS JUDGMENT challenges India’s fragile national security. Undoubtedly, the judges have entered the political thicket. The court has acquired an ideology. It has chosen a preferred course of economic policy. It has also substituted the wisdom of the executive for its own wisdom of how Maoism is to be tackled. The judgment disregards the basic constitutional feature of separation of powers. The law declared by the Supreme Court binding on all subordinate authorities now is – “Predatory forms of capitalism supported and promoted by the state in direct contravention of constitutional norms and values, often take deep roots around the extractive industries.”

After a detailed ideological discourse, the Court goes on to find faults with the deployment of SPOs even though the Centre and the state legislation specifically empower them. It is held to be violative of Article 14 because youngsters with little education background from amongst the tribals are being given these appointments. It is held to be violative of Article 21, the right to life and liberty, because SPOs have low educational qualification and cannot be expected to understand the danger of fighting Maoism. Hiring such SPOs would endanger their lives and lives of others and therefore encouraging them is violative of Article 21. The payment of honorarium is yet another ground for quashing their appointment.

If the court found the honorarium inadequate it could always direct a more humane honorarium. If the court found that educational qualifications for becoming SPOs were inadequate, it could always direct the state to formulate a policy so that persons with reasonable qualification are appointed as SPOs.

The rationale of the judgment is ideology not constitution. When a court acquires an ideology it decides to frame policy. It dismantles the constitutional mandate of separation of powers. It enters the domain of the legislature and the executive. The rationale in this judgment has upset the constitutional balance. If the ideology of a judge decides constitutionality, the socio-political philosophy of the judge would become relevant. When the social philosophy of a judge is relevant you are back to the Emergency-eve days. There is no greater threat to judicial independence than a judiciary committed to a socio-political ideology and not the Constitution. India’s political process and parliament must seriously consider the consequences of this judgment.

Arun Jaitley is Leader of the Opposition in the Rajya Sabha.