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Judicial Activism:Protecting People’s Rights, by Dhurjati Mukherjee, 14 May 2007 Print E-mail


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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