Open Forum

New Delhi, 20 August 2012

Judicial Activism

UPHOLDING PEOPLE’S ASPIRATIONS

By Dhurjati Mukherjee

Three cheers to the Supreme Court. In yet another significant move, it ruled that free assistance must be provided to all poor accused, at every stage of the three-tier justice delivery system, and could not be restricted to the trial stage only irrespective of the severity of the crime attributed to them. The apex court asserted that there should not be any distinction “between a trial and an appeal for the purpose of providing free legal aid to an accused or person in custody”.

A bench of Justices A. K. Patnaik and Madan Lokur disagreed with earlier judgments which hinted at carving out exceptions for providing free legal assistance to the accused facing trial in economic offences or those against law prohibiting prostitution or child abuse. “If such exceptions are accepted, there may be a tendency to add some more, such as cases of terrorism, thereby diluting the constitutional mandate and fundamental rights guaranteed under Article 21 of the Constitution”, it stated.

The Supreme Court has been one of the most active courts in the world today. Some political leaders, including the Prime Minister, had argued that the apex court overstepped the limits of judicial powers but this has no basis as it has been carrying out exemplary work.

While some may have vested interests in curbing the powers of the apex court, the others are oblivious to the systemic malfunctioning and obviously want this to continue. If our apex court has played more of a role as an activist, it is because of poor governance and an inefficient Government in enforcing the rule of law and allowing wanton corruption to infiltrate the system and affect the common man.

There can be no denying that the Supreme Court has turned over a new leaf under Chief Justice S.H. Kapadia which augurs well for an institution whose reputation had taken a battering during the tenure of his predecessor, K. G. Balakrishnan. The moral edge it has wrested from the Executive is also evident in various actions taken – whether Justice G. S. Singhvi driving the CBI in the 2G scam or Justice B. Sudershan Reddy arguing the need of the Government to bring back black money stashed in tax heavens by industrialists and political leaders or even the cases pertaining to illegal mining in Karnataka and other States.

The vigorous manner in which the SC pursued a range of PIL cases in recent months marked a new phase and a sharp contrast to the earlier one, rekindling the hope that this is the sole institution that can challenge the high and mighty. A case in point is of the startling revelation by the Central Empowered Committee (CEC), set up by the apex court recently, submitting a report to a bench of Justices Aftab Alam, K. S. Radhakrishnan and Swatanter Kumar which found that the State exchequer lost Rs 7000 crores every year over the past one decade due to illegal mining in Karnataka.

There was a time when the neutrality and transparency of the apex court had taken a beating, specially during the Emergency. Recall that four of the five judges agreed with a lower court judgment that the people had no Right to Life because Article 21 had been suspended. Today, however, the apex court is able to look back on that judgment and observe: “there is no doubt that the majority of the court in the ADM Jabalpur case violated the Fundamental Rights of a large number of people in this country”.

Undoubtedly, the Indian legal system is firmly entrenched as is evident from recent judgements. Apart from the SC, many High Courts are proactive and most of their judgments have been positive, forthright and greatly appreciated by the civil society. The whole system is of a high order as a study, about a year ago, noted that Indian law firms are increasing their presence internationally because of their expertise and skill in various disciplines of law.

Even then, it appears the Government is somewhat reluctant to strengthen the judiciary. The budgetary allocation for it is less than one per cent which has impeded the setting up additional courts and the infrastructure needed to speed up the judicial delivery system. Recently, a bench of Justice G. S. Singhvi and A. K. Ganguly regretted the lack of speedy justice. “Even in the Supreme Court, a special leave petition takes eight years to reach the final hearing”, it said. “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? There are only lectures, sermons, committees and commissions but no solutions”.

There are 16,000-odd trial courts in the States fighting to dispose over 2 crore pending cases. Though the Prime Minister at the 17th Commonwealth Law Conference asserted that “constitutional democracy with an unwavering commitment to the rule of law was the best choice for emerging economies”, there is little initiative to enhance the judicial system and its neutral stand.  Clearly, if the necessary infrastructure is not provided, the dispensation of justice would be retarded which would affect the aam admi. Perhaps this is the reason for the Court to observe the need for free legal aid for the poor.

The new phase of judicial activism has been forthright in assessing the Executive’s performance and the reliance on courts for justice has been aptly honoured. Judicial interventions have had positive effects and the courts have unhesitatingly used the force of law to impose deadlines, define Government’s accountability and asked for explanation for non-compliance. Indeed, there is no other institution to demand the same.

Further, while there may be friction between the judiciary and the Legislature and Executive, we must admit there is no alternative. The former can alone seek legislative and executive accountability. Hence, we note that the judiciary’s growing importance has greatly unnerved the present bunch of politicians and bureaucrats, some of whom are involved in corrupt practices or are party to wrongdoings of the Government. But there is no doubt that the higher judiciary commands respect of most citizens notwithstanding instances of corruption in lower judiciary coming to light.

At the same time, there is an urgent need for intervention at the lower courts to curtail corruption levels to the extent possible and help the poor get justice. Moreover, a gnawing problem that needs further attention is the growing political influence on the judicial system, again more pronounced at lower levels. In fact, it is crucial there is no more delay in the formation of the National Judicial Commission. It’s composition of judges, former judges, senior advocates and highly reputable social activists could help tackle the above-mentioned problems effectively.

The Commission would help in carrying out all matters pertaining to appointments, transfers and punishments of judicial officers, if and when necessary, without any interference from the executive and that political interference would be greatly reduced. It is time the apex court intervenes and ensures no more precious time is wasted. ---INFA

(Copyright, India News and  Feature Alliance)