Modi's jibe at judiciary Rajindar Sachar

Modi's jibe at judiciary

Rajindar Sachar

The criticism of judicial activism is untenable

Prime Minister Modi’s gratuitous comment about the judiciary being influenced by five-star activists was a cheap joke which brought down the prestige of the biggest political office of the country. And he made these observations at the Chief Justices’ conference, which was also attended by chief ministers. The diatribe against the judiciary was uncalled for, and dangerous if allowed to be followed by chief ministers.

The remark shows ignorance of the kernel philosophy of a democratic country like ours where three wings - the executive, the legislature and the judiciary -- have an equal role within our Constitution, but still inevitably cannot help breathing down on each other's neck. Statesmanship and sobriety require a mature response from all. Unfortunately, Modi, a former Chief Minister, has not been able to find his feet of working in the broad contours of India's Constitution and that alone could be the excuse put forth by his apologists. Thankfully, the Chief Justice of India issued a dignified response that "Indian judges remain as fearless as they ever were".   

In spite of the executive's unhappiness, the judiciary right from the beginning has not shirked from its path as explained by Chief Justice Patanjali Sastri (1951) thus: "We think it right to point out, what is sometimes overlooked, that our Constitution contains an express provision for a judicial review of legislation as to its conformity with the Constitution. If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution".

The criticism of judicial activism as such is, therefore, untenable.  Courts have for long been judicially active in giving relief in social action litigation to labour, to victims of custodial violence, to victims of excesses committed by the executive.  But as previously judicial targets were comparatively junior officials and certainly never involving politicians, the issue of judicial activism was not raised by politicians.  This charge of alleged interference by courts has only now been made because the fire of judicial activism is coming nearer home to the high officials and politicians who had hypnotised themselves into believing that they were above the law. 

The Prime Minister has, in spite of strong T.V. and public criticism, chosen to keep silent about five-star social activists from whom he alleges the judiciary is said to be threatened. Let me then share a few facts. The Supreme Court has passed various orders to uphold the human rights of people, especially of the deprived sections, at the instance of the People's Union of Civil Liberties, a human rights organisation set up in the dark period of the Emergency (1976) by Jayaprakash Narain, the Socialist leader. The PUCL's constitution forbids foreign donations. Its funds are raised locally. It challenged and got some relief from draconian laws enacted in the name of fighting terrorism like TADA, POTA and the Unlawful Activities Act both by the Congress and B.J.P. governments.

It was at the instance of the PUCL that the Supreme Court directed the candidates to disclose information about their financial status and criminal cases pending against them at the time of filing nominations for an election. Such was the effrontery of all political parties, including the Congress, the B.J.P. and even the Left, that they unanimously passed a law specifying that, notwithstanding the Supreme Court verdict, the Election Commission would not follow that judgment. The PUCL had to move the Supreme Court second time to have this resolution of Parliament nullified and it is only then that the present system came to be followed. 

Again, it was at the instance of the PUCL that the government was prohibited from telephone tapping at the executive's pleasure and Parliament was forced to pass legislation.

The right to reject a candidate at the time of an election, though recommended by the Election Commission, was withheld by both the Congress and NDA governments for over a decade till a directive was issued to the Central government on a writ petition filed by the PUCL. Directions to the government to supply food to the starving people of Orissa and poor people have been issued at the instance of the PUCL.  

The bar on M.P.s and M.L.A.s to continue as members of their respective legislature after their conviction was the result of a petition by a citizens’ group. So was the exposure of illegal allotments of Spectrum and coal blocks that were later set aside by the Supreme Court.

It is not necessary for me to go into details to recapitulate where, but for a judicial intervention, many of the urgent public matters would have remained in limbo. Thus the Supreme Court's declarations in gender harassment cases led to the framing of legislation. Similarly but for the Supreme Court the independent status of the Central Vigilance Commission would not have been established. Nor would police reforms have been put on the anvil so as to hold the police accountable for custodial illegalities, notwithstanding that police commissions recommending police reforms in their reports submitted over decades back. This was all at the instance of civic-conscious citizen groups.  

I am willing to concede that courts are now showing more activism than before. But this is a consequence of misfeasance of politicians. It will be a pity if ever a climate was created against the exercise of judicial activism because such an eventuality may lead to the loss of faith in the law as an instrument of social change and justice — an alternative course cannot be viewed in equanimity even by Modi loyalists because people, if denied justice through courts, would inevitably be driven to march through the streets.

Yes, I concede there have been decisions made at the instance of five-star personnel — but they are not at the instance of courts - they are the result of a direct link-up between the Modi government and the big corporate sector. The decision not to appeal in the Vodafone case resulted in the loss of Rs 8,000 crore to the government. The Modi government pressured the State Bank of India to guarantee loans to the extent Rs 6,000 crore to an industrial house close to the present political power for utilising funds to extract coal from Australian mines - ironical when our coal mines are remaining idle because the government says it is short of funds. 

No, Mr Prime Minister, this cheap joke directed at the judiciary was totally uncalled for - more especially when you ignored such a wide, ever-expanding mole in the Central Government's own eye.