Friday, November 11, 2005

The Judiciary as the Conscience Keeper

see previous Article

For one more time in the recent past, the actions of the Executive have met with disapproval from the Supreme Court of India. (See Judgment here).

This time, the administrative action of the State Government in Uttar Pradesh withdrawing cases under POTA against Raghuraj Pratap Singh (a Minister in the State Government) and others in August 2003 was found to be unsustainable and its Orders withdrawing the cases and directing the Public Prosecutor to withdraw the cases were quashed.

Equally important is the Court’s direction to transfer the cases to a Court outside the State based on “the likelihood of miscarriage of justice” if the cases were to be run in Uttar Pradesh.

Coming close on the heels of the Supreme Court Order in Bihar Assembly Dissolution Case and the Judgment in Kanchi Shankaracharya Case, this Judgment serves as one more reminder to the people to be alert to the potential of such Executive actions to weaken the foundations of the Constitution on which our Democracy rests.

Once more, there are some who may try to portray such decisions from the Judiciary as denoting some kind of confrontation with the Executive or the Legislature. An attempt is also being made to interpret a recent Speech of the President of India as showing the President’s concern at the ‘encroachment’ of domains amongst the Executive, the Legislature and the Judiciary. An inference is sought to be drawn that his observations are an oblique reference to the Judiciary.

A perusal of the Speech of the President, however, does not lead to such a clear cut inference. The Speech is a fair presentation and reiteration of the ideas on the working of a Constitution that are already generally recognized and not in dispute. The one part of the Speech that can, perhaps, be construed as reference to the Judiciary, is found in the following paragraph (relevant part in italics):


Separation of Powers

The basic concept of the separation of powers would mean -

(a) The same persons should not form part of more than one of the three organs of the Government

(b) That one organ should not control or interrupt with the working of another, and

(c) That one organ of Government should not exercise the functions of another.


Those who have been voicing their feelings that the Judiciary is straying into the domains of the Executive or the Legislature, particularly the former, have tried to read in the Speech between the lines and are hinting that the President is concerned about this aspect. If the President, the highest Constitutional authority, was indeed referring to this, it is sufficient to require introspection by all the pillars of democracy to determine what corrective steps, if any are called for, need to be taken.

In this context, the comments of the Law Minister at a Seminar on ‘Social Responsibility of Lawyers” deserve notice. During the course of his speech, he is reported to have lamented at the difficulties of getting bail for the accused even in the higher courts. If his comments are confined to this aspect of civil liberties and if there are justifiable reasons for his conclusions, these can and should be objectively considered by the Judiciary. If, on the other hand, these comments are just a cloak for the Government’s irritation for certain adverse Judgments having a political impact, they are unacceptable.

Instead of hitting out at the Judiciary, the more appropriate course for the Government would be to ensure better governance in every sense of the word. The quality of Governance will become increasingly relevant in the future and with the lay public becoming more aware and the impact of the Right to Information Act percolating, there are bound to be more rather than less references to the Judiciary for preceived wrong actions or inaction of the Governments.

If any aberrations in the delicate balance between the organs of the State were indeed taking place, they would be best addressed by an objective and internal introspection within the pillars of the Democracy themselves. Placing them for public debate could mean politicising this sensitive area or bringing in a lot of subjectivity and uninformed comments that would only confuse the issues.


At November 12, 2005, Anonymous Lalwani said...

THe Union Minister Mr. Bharadwaj has been very loudly saying things which are not pleasant for the Judiciary. If he has a reason, it should be given due consideration.

At November 12, 2005, Anonymous A S Kadri said...

The Judiciary is not liked by the Government because it is questioning its decisions and orders.

At November 14, 2005, Anonymous Anonymous said...

Mr. Bharadwaj seems to be talking as proxy for the political parties concerned.


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