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Black Coats and White Kurtas
Posted by the lazy knight
on
1:41 PM
These are interesting times for the Indian judiciary. A highly regarded, vocal and distinguished Chief Justice has now given way to a man who would be the first person from the backward castes to reach the pinnacle of judicial system. Justice Y.K Sabharwal was a man who never held back, did not hesitate from taking tough decisions and walked as straight and a diplomatic line as possible in times of increasing inter democratic organ friction. His rulings mostly panned the executive of the day – from declaring the dissolution of Bihar assembly by Governor Buta Singh as unconstitutional to the Delhi sealings judgment that made life miserable for the centre and the state governments. But his most far reaching decision and possibly the one which may end up having the greatest impact on India’s polity in the future was the last one he passed in the capacity of Chief Justice of the Supreme Court. It was a nine judge constitutional bench (the very acme of the Lordships inhabiting the Supreme Court) headed by Justice Sabharwal which ruled that every law including those placed under the Ninth schedule of the constitution were subject to judicial scrutiny. In effect, it meant that the executive could now not place populist laws under the said schedule and then take cover behind the judicial immunity granted by Article 19 of the constitution. To cut a long story short, Article 19 was introduced by Nehru in the early fifties to grant immunity to land reform laws from judicial inspection. It basically stated that all laws placed by the executive under the Ninth schedule of the constitution could not be challenged in the courts. Over a period of time, politicians had misused this provision to place populist legislations under this schedule, the most prime example being the Tamil Nadu legislation reserving 69% of seats in educational institutions for backward castes in spite of the fact that a Supreme Court ruling exists that states that quotas cannot exceed 50%.
Now however, the Supreme Court has a differing view. Call it a traditional or a flexible view as you may see it, but the nine judge bench basically held that the constitution was envisaged by its makers to possess a basic structure and grant certain fundamental rights and no provision of the constitution or any statute placed under it can undermine that vision. Thus any legislation, even if placed under the Ninth schedule (notice the role of number 9 in all this drama) if it violates the basic structure or fundamental rights (just as the Tamil Nadu statute violates the fundamental right of equality), it is open to judicial review and liable to be struck down. It is a judgment which has opened up new possibilities of interaction between the judiciary and the executive and as many lawyers and constitutional experts believe that interaction may not be a very friendly one.
The judiciary – executive interaction has taken a few interesting turns in recent times. Often the judges have come to the rescue to the legislature, as seen by the upholding of the parliament’s decision to expel corrupt MPs. But on most of the occasions, it has been a confrontational stance adopted by the courts, more like a strict schoolteacher punishing an errant student. The CNG conversion fracas in Delhi (pushed down the throat of an unwilling administration by the courts), the sealing rulings, reservations issue, the ruling on the Bihar assembly dissolution and the ruling calling for shifting of hazardous industrial units out of Delhi all have pushed the executive into a corner. The friction between the two organs has not been helped by the fact that often the netas and the babus have pleaded helplessness in implementing the orders of the court as was seen in the case of sealing of illegal properties in Delhi. One may wonder whether in a scenario of politicians increasingly resorting to short term populist politics for sustaining vote banks, is the judiciary actually assuming more and more responsibilities of the executive? Do we want our courts to decide how land should be used in Delhi or how many seats should be reserved in colleges or how or police system needs to be reformed or which fuel should buses in the national capital run on?
These are questions which lie solely in the executive’s domain but as the netas yield decision making ground to the courts in search of greener vote pastures, the turf battles it seems are ready to begin. For time and time again, the administrators wake up (notice the uproar in parliament about the fact that their decision to expel MPs could be reviewed by the Supreme Court) and try to ward off the courts. So far the courts have held an upper hand and have ridden a public opinion which is widely distrustful of those who govern.
But at the other end of this spectrum lies an equally interesting story. A story which each outgoing Chief Justice talks of but rarely acts upon. A story of judicial accountability and corruption. It is now widely acknowledged amongst the senior judges that corruption does prevail amongst the lower levels of the judiciary. Repeated cases of judicial misconduct – Justice Mukherjee of Delhi HC being indicted for disproportionate assets, the spat between two judges of the Punjab HC and the sex scandal involving judges of the Karnataka HC – have come to highlight the problems thus far ignored by both the Supreme Court and the law ministry. The question of judicial competence and accountability is of far greater import than the administrative problem of cases in backlog frequently cited by the media. One would wonder why someone like Justice Bhayana who acquitted Manu Sharma at the trial court stage was promoted to the Delhi High Court within two weeks of that verdict. And will a judge whose verdict was termed as ‘bad in law’ (worst indictment for a judicial verdict) by a higher bench of the same court where Justice Bhayana now sits, still get to hear criminal cases and decide on the destinies of other Manu Sharmas. This is an issue not just of corruption but also of competence – why are our trial courts repeatedly giving verdicts which are so resoundingly overturned by the higher courts? (SAR Geelani’s conviction and the Priyadarshini Mattoo cases being high profile examples of this trend) And has anyone in the Supreme Court woken up to this disturbing trend.
My hunch is that yes, someone may have realized the problem exists but its solution is either out of sight or way below in the judiciary’s list of priorities. Only lip service has been paid and repeatedly whenever the media has highlighted this malaise, the courts quite disappointingly have hidden behind the protective walls of the contempt laws. So who will judge our judges? The executive has so far kept away from active participation in the cleaning up process, resorting to mere lip service on ceremonial occasions to express its concern. But as the friction between the two grows and as the courts put more force on the netas, striking down populist laws and forcing them to take unpopular but necessary political decisions, the executive and the legislature may well take up the bogey of judicial accountability. It will be their ultimate ‘brahamastra’ – a weapon to ward off the judiciary as well to strike crucial blows on judicial independence. Clever politicians could well keep the domain of ruling upon the ability of judges to judge to themselves and that scenario is the ultimate nightmare of any of those black coats sitting on the benches of the higher courts.
There is thus a delicate balance existing between the courts, the parliament and the government at this stage. Each has possible lever against the other – the courts possess one that is explicit while the parliament and the executive one that is hidden and whose exact contours, sharpness and capability to hurt is as yet unknown. How this scenario pans out in the future will determine the future meetings between these three pillars of democracy. The more the courts shy away from looking within themselves, the more they will give space to public opinion supporting politicians to act on that front. The roles will then be reversed, democratic responsibilities and spaces will lose their clear demarcations and general confusion may reign. It is an interesting scenario if you are a game theorist, only the game at stake is India’s future as a healthy and functioning democratic system.
Now however, the Supreme Court has a differing view. Call it a traditional or a flexible view as you may see it, but the nine judge bench basically held that the constitution was envisaged by its makers to possess a basic structure and grant certain fundamental rights and no provision of the constitution or any statute placed under it can undermine that vision. Thus any legislation, even if placed under the Ninth schedule (notice the role of number 9 in all this drama) if it violates the basic structure or fundamental rights (just as the Tamil Nadu statute violates the fundamental right of equality), it is open to judicial review and liable to be struck down. It is a judgment which has opened up new possibilities of interaction between the judiciary and the executive and as many lawyers and constitutional experts believe that interaction may not be a very friendly one.
The judiciary – executive interaction has taken a few interesting turns in recent times. Often the judges have come to the rescue to the legislature, as seen by the upholding of the parliament’s decision to expel corrupt MPs. But on most of the occasions, it has been a confrontational stance adopted by the courts, more like a strict schoolteacher punishing an errant student. The CNG conversion fracas in Delhi (pushed down the throat of an unwilling administration by the courts), the sealing rulings, reservations issue, the ruling on the Bihar assembly dissolution and the ruling calling for shifting of hazardous industrial units out of Delhi all have pushed the executive into a corner. The friction between the two organs has not been helped by the fact that often the netas and the babus have pleaded helplessness in implementing the orders of the court as was seen in the case of sealing of illegal properties in Delhi. One may wonder whether in a scenario of politicians increasingly resorting to short term populist politics for sustaining vote banks, is the judiciary actually assuming more and more responsibilities of the executive? Do we want our courts to decide how land should be used in Delhi or how many seats should be reserved in colleges or how or police system needs to be reformed or which fuel should buses in the national capital run on?
These are questions which lie solely in the executive’s domain but as the netas yield decision making ground to the courts in search of greener vote pastures, the turf battles it seems are ready to begin. For time and time again, the administrators wake up (notice the uproar in parliament about the fact that their decision to expel MPs could be reviewed by the Supreme Court) and try to ward off the courts. So far the courts have held an upper hand and have ridden a public opinion which is widely distrustful of those who govern.
But at the other end of this spectrum lies an equally interesting story. A story which each outgoing Chief Justice talks of but rarely acts upon. A story of judicial accountability and corruption. It is now widely acknowledged amongst the senior judges that corruption does prevail amongst the lower levels of the judiciary. Repeated cases of judicial misconduct – Justice Mukherjee of Delhi HC being indicted for disproportionate assets, the spat between two judges of the Punjab HC and the sex scandal involving judges of the Karnataka HC – have come to highlight the problems thus far ignored by both the Supreme Court and the law ministry. The question of judicial competence and accountability is of far greater import than the administrative problem of cases in backlog frequently cited by the media. One would wonder why someone like Justice Bhayana who acquitted Manu Sharma at the trial court stage was promoted to the Delhi High Court within two weeks of that verdict. And will a judge whose verdict was termed as ‘bad in law’ (worst indictment for a judicial verdict) by a higher bench of the same court where Justice Bhayana now sits, still get to hear criminal cases and decide on the destinies of other Manu Sharmas. This is an issue not just of corruption but also of competence – why are our trial courts repeatedly giving verdicts which are so resoundingly overturned by the higher courts? (SAR Geelani’s conviction and the Priyadarshini Mattoo cases being high profile examples of this trend) And has anyone in the Supreme Court woken up to this disturbing trend.
My hunch is that yes, someone may have realized the problem exists but its solution is either out of sight or way below in the judiciary’s list of priorities. Only lip service has been paid and repeatedly whenever the media has highlighted this malaise, the courts quite disappointingly have hidden behind the protective walls of the contempt laws. So who will judge our judges? The executive has so far kept away from active participation in the cleaning up process, resorting to mere lip service on ceremonial occasions to express its concern. But as the friction between the two grows and as the courts put more force on the netas, striking down populist laws and forcing them to take unpopular but necessary political decisions, the executive and the legislature may well take up the bogey of judicial accountability. It will be their ultimate ‘brahamastra’ – a weapon to ward off the judiciary as well to strike crucial blows on judicial independence. Clever politicians could well keep the domain of ruling upon the ability of judges to judge to themselves and that scenario is the ultimate nightmare of any of those black coats sitting on the benches of the higher courts.
There is thus a delicate balance existing between the courts, the parliament and the government at this stage. Each has possible lever against the other – the courts possess one that is explicit while the parliament and the executive one that is hidden and whose exact contours, sharpness and capability to hurt is as yet unknown. How this scenario pans out in the future will determine the future meetings between these three pillars of democracy. The more the courts shy away from looking within themselves, the more they will give space to public opinion supporting politicians to act on that front. The roles will then be reversed, democratic responsibilities and spaces will lose their clear demarcations and general confusion may reign. It is an interesting scenario if you are a game theorist, only the game at stake is India’s future as a healthy and functioning democratic system.
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