Events And Issues
New Delhi, 14 May 2007
Judicial
Activism
Protecting People’s Rights
By
Dhurjati Mukherjee
The Prime Minister stated recently that “a thin line divided
judicial activism from judicial overreach”. As is well known, tensions between
the legislature and the judiciary have surfaced in recent times and the Prime
Minister obviously referred to this. But the Chief Justice, K. G. Balakrishnan
said such frisson was “natural and
even desirable” in a healthy and democratic society. Referring to public
interest litigations (PILs), which PM agreed had great utility for initiating
corrective action, he observed that they should not become vehicles for
settling political or other scores.
The recent spate of judgments like those on Bihar Assembly dissolution,
Jharkhand Government formation, expulsion of MPs in cash-for-query scam,
reservation in promotions and finally the stay on 27 per cent OBC quota have no
doubt unnerved the Centre. But the apex Court’s ruling on Bihar
and also in Jharkhand was greatly appreciated by the general public as it
helped in putting in place a system of governance in tune with Constitutional
provisions. But it dented the ego of many political leaders of the ruling class who raised the question of the judiciary’s
interference in political matters.
Also the illogicality of giving reservation within
reservation in the M. Nagraj case and the lately the stay on OBC quota in institutions
of higher learning has added fuel to the fire. These rulings were linked to
quota politics and the political class
protested as, in our country, they have resorted to such action for electoral
gains. The judiciary thus became branded of overstepping its Constitutionally-demarcated
limits.
One may mention here that the framers of the Constitution had
placed a time limit of 10 years on such social affirmative actions. Although
not much could be accomplished in uplifting the conditions of the backward
castes as also the poorest of the poor, even after 60 years of independence,
there is need for the judiciary to go deep into the problem and strike a
balance between the right to equality and the extent of social affirmative
action needed at this juncture.
The Supreme Court in India is highly regarded all over
the world for its independence and judicious approach in taking decisions.
Right to equality, promising equal treatment to all citizens, irrespective of
birth, caste, class or sex has been
the cornerstone of all judgments in tune with the provisions of the
Constitution. Instead of appreciating the approach of the apex court, some
political leaders – (most with criminal or dubious tags behind them) have
resorted to challenging the independence of the judiciary and trying to bring
them under some control.
There need not be any conflict between the legislature and
the judiciary as each of them has its respective roles laid out in the
Constitution. All three wings---legislature, executive and judiciary---owe
their place and power to the Constitution, which has created and empowered them
on a mandate from “we the people of India”. There is a feeling in
recent times that the judiciary has taken the lead to enlarge its jurisdiction
but that is because “of inaction on the part of the executive and legislature
in performing their constitutional obligation”, pointed out a former Chief Justice
of India.
One may mention here that the apex Court was right in saying
that though Article 368 empowers Parliament to amend the Constitution; this
power cannot masquerade as people’s will to subvert the basic framework of the
Constitution, fundamental rights included. The total denial of judicial power
enacted by 31B under the Ninth Schedule is a case in point. Taking advantage of
this, the dreaded MISA law of 1975 and the Prevention of Publication of
Objectionable Matter Act 1976 (to control the free Press)
were put under the Ninth Schedule, though repealed later by Parliament.
There is thus need to ensure that the judiciary is allowed
to follow its own course to ensure better governance and equality of
opportunities to all. For this, it is necessary
that cases should not be kept pending for inadequate number of judicial
officers. Moreover more fast-track courts should be set up all over the country
to ensure speedy trials as delays affect proper trials, leaving room for
manipulation.
The respect that judges in High Courts command is because of
their neutrality and independence. But there have been allegations, and not
without any basis, that the rich and the powerful benefit if a case goes to
court because of the inordinate delay and also because of the system of
approaching a higher court when the judgment goes against the applicant. This
undoubtedly is a major flaw in our system and some remedial action needs to be
evolved to help those who cannot afford to engage lawyers to defend their
cases. Though, in recent times, fast-track courts have been of some help, the
poor continue to suffer because of the expenses and time taken to settle cases.
The involvement of the judiciary in the realm of environment
has also evoked much discussion and
debate in recent times. In the areas of forest degradation, pollution control,
solid waste management, water contamination, arsenic control, conservation of
wetlands and lakes etc. vigilant action by the judiciary has helped in the enforcement
of laws by various state government, which affect the lives and well being of
the people.
One may mention here the contribution of M. C. Mehta, the
activist-lawyer, whose PILs had led to landmark orders like getting tanneries
shifted from Kolkata and polluting industries out of Delhi, the switch to CNG
by public transport in Delhi and by local authorities in Agra (to protect the
Taj Mahal).
However, it needs to be mentioned here that judgments are
not always enforced. The number of judgments not implemented stands at around
500 in the past couple of years, up from 300 in 2000. In public perception, the
judiciary is the last bastion of hope for the justice and it is necessary for executive to enforce their orders. There
have also been allegations that the judiciary, in some cases, has also not been
serious about enforcing laws, specially pertaining to the rights of the poor as
it is about protecting the rights of the privileged. This, however, should not
be allowed to happen.
The judiciary has played an exemplary role, specially in the
last few years, and if the legal process
is expedited there can be no doubt that the benefits would go to the people.
Moreover, the poor should have the benefit of getting legal counsel at the cost
of the state or be allowed to plead their own case. This would go a long way in
making the judiciary people-oriented and ensure that the rights of the people,
including women and children, are safeguarded.---INFA
(Copyright,
India News and Feature Alliance)
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