Empty Controversy

Judicial Review is implicit in the Constitution and must not be a reason for controversy between the Legislature and the Judiciary. Law day again brought out public protestation by the Chief Justice of India in highlighting the hurdles in the working by the judiciary caused by indifference by the Executive to increase the strength of High Court Judges and not filling up even the 100 existing vacancies in High Courts and over 3000 vacancies in the subordinate Courts inevitably leading to arrears of 37 lakhs in High Courts and 2.50 crores in subordinate Courts. No wonder the Judiciary is unable to do its constitutional duty to dispense justice fairly, and with expedition. The Executive and the Legislature on their part resent at the Judiciary seeking to speak on matters which they consider is their exclusive domain.

I feel sincere efforts are needed in lessening tension amongst the Judiciary, the Executive and the Legislature, which is based on no real premise. The power of Constitutional review, to be exercised by some wing of the State is implicit in the conception of a written Constitution and it would promote discord rather  than  order  in  society  if  there  was  no  accepted  authority  to construe it. Therefore, logically and practically, the Constitution requires some authority to resolve all constitutional issues and the power of judicial review conferred on the Supreme Court and High Courts is an inevitable consequence of this premise.

Dr. B.R. Ambedkar defended the provisions of judicial review as being absolutely necessary. According to him, the provision for judicial review and, particularly, for the writ jurisdiction that gave quick relief against the abridgement of fundamental rights constituted the heart of the Constitution.

The criticism of judicial activism as  such is untenable. If the people go to the Supreme Court and the High Courts under their writ jurisdiction and raise issues of governance that is said by interested party executive to be non-justiciable, it is out of their relatively greater regard for the courts compared to other organs of Government. Had the courts  not  entertained  those  matters,  there would have been greater frustration among the people and perhaps it might have exploded in some way detrimental to democracy.

Thus people’s anger at criminalization of politics, (in fact it is politicisation of criminals) when ignored by the Legislature, found a sympathetic ear in Judiciary when it held that right to know mandates that all candidates disclose their involvement in criminal cases, and their assets, in their nomination papers.  Though the Court had only asked for information, this harmless action invited unanimous howling protest from all political parties who tried unconvincingly to convert it as a confrontation between legislature and judiciary.

It was only after the Supreme Court held telephone tapping to be illegal, that the Parliament passed a law, notwithstanding that it was common knowledge that police was illegally tapping telephone of Central Ministers, political leaders and important journalists, for over two decades.

It may be sobering for the politicians to reflect that, but for judicial intervention, many of the urgent public affected matters would have remained in limbo. Thus, Supreme Court declaration in a gender harassment cases  led  to  the  framing  of  legislation.  Similarly , but  for  Supreme  Court, the independent status of Central Vigilance Commission would not have been established. Nor would  police  reforms have been put on the anvil, so as to hold accountable the police for custodial illegalities, notwithstanding that police commissions have recommended police reforms in their reports submitted over decades back.

Though I have praised the role of the Judiciary, it would not only be unfair but also not factually correct to admit that in recent times more and more occasions are arising  where the Courts’ interventions are in matters which are totally the preserve and expertise of other instrumentalities.  Thus for courts to seek to lay down principles and direct the education experts, principals of  public  schools as to the age at which nursery should admit children is to arrogate claim to superior knowledge of child psychology   against  experts.

Or there is the direction to State Governments how to keep a computerized list of offices, their posting period and how their transfers should take place. Now to try to supervise day to day disciplinary matters and efficiency of the work of administration by the Courts will necessarily and justifiably draw a retort to the Judiciary to look within and improve  its own slothful working of majority of Courts, and tack consideration for litigants time and convenience – in short to remind the Courts :“Physician heal thyself”.

Now consider the role of Parliament and Executive in sleeping over in matters of public concern, and the restraint shown by courts in withholding to step in. Press reports that the Lok Sabha Speaker wants to apply the principle of “no work no pay” to those legislators who disrupt proceedings in the House which has been universally welcomed. The legislators with cheek in their tongue, term it as an  abridgement of their  Parliamentary  privileges,  but  the  masses   find this self glorification laughable.

The shame of not ratifying UN Convention Against Torture and other Cruel, In human or Degrading Treatment or Punishment (UNCAT),which was adopted by U.N.General Assembly on 10th December, 1984 and entered into force on 26th June ,1987 continues to haunt us though succession of Central Governments consisting of almost all political parties of various hues (so much for our commitment of political parties to Human Rights.)

For  decades there has been a demand that Parliamentary privileges should be   codified.    M.  N.  Venkatachaliah     Chief     Justice   (Retd.)    Commission recommended it as an urgent measure. But Parliament has not moved – if the privileges are codified, courts will be able to supervise it and the actions of small time legislators strutting about beating passengers in railways or hauling respectable journalists for alleged breach of privilege, will have their wings clipped .No wonder Parliament does not move.

Judicial activism has always invited controversy from the Executive, but at the same time it has invited kudos from the public. But the Judiciary also cannot run riot.

I am quite willing to echo the sentiment of an innocent child who on seeing Emperor in a bathtub said without any trepidation “the Emperor has no clothes on.” Broadly I would be willing to say the same about all three namely the Legislature, the Executive, and the Judiciary, but even if I was to be partial I could only say at the highest that the Judiciary has a small vest on its chest – otherwise it is in the same position, as others.

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JUSTICE SACHAR