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Mainstream, VOL LIII, No 16, April 11, 2015

Judicial Activism, Right or Wrong

Sunday 12 April 2015, by Nikhil Chakravartty

From N.C.’s Writings

When politicians as a community are in a state of siege in the eyes of the public, it is extremely short-sighted on the part of any government to make any move that may appear to the public as a means to cover up or to close the channels of the politician’s exposure.

While in the public mind, corruption among politicians has become a live issue since the Bofors bribery scandal, it was during Narasimha Rao’s Prime Ministership that the enormity of corruption in public life could become a matter of revulsion in a wide section of the public. There came the magnum size scam in the stock market which shook public confidence as it brought out the studied, calculated moves by the concerned Ministers to belittle this blatant pilfering of public money, not to speak of promising the public that the Augean’s stables would be cleaned up. More shocking has been the endless disclosures of politicians being involved in major cases of bribery and criminal conduct of politicians in power having been accused of huge financial scandals which, since January last year, have come out one after the other, reading like the Roll of Dishonour of our political life. Cabinet Ministers making crores with the connivance of corrupt officials has almost become a feature of our public life.

First came the breath-taking Jain Hawala scandals in which well-known leaders from the three major parties—the Congress, the Janata Dal and the BJP—were implicated. At first, at least for a few days, the speculation was that perhaps Narasimha Rao had managed through the CBI to discredit the leaders of rival parties and to malign his critics within his own party. In other words, it was thought to be an election-eve cheap stunt by a political leader in a jam utilising the CBI which was under his charge as the Prime Minister. But the Jain Hawala diaries turned out in a few weeks to be a boomerang for Narasimha Rao, as other scandals of bigger magnitude began to come to light and the CBI itself was directed by the Supreme Court to report to it about the progress of every ongoing political case, while Rao found himself hauled up in a number of serious cases in which he was implicated on such charges as falsely attesting in a trumped-up case and be a party to the bribing of a bunch of MPs to change sides in a crucial no-trust move against his govenment in Parliament.

It is against the background of such an ominous situation that the government has started taking measures to curb the independence of the judiciary. In the last one year’s record of the judiciary taking a closer view of corruption in public life, the politicians now in the dock can hardly take refuge behind the traditional judicial delay and procrastination to save themselves from the mounting public anger against those who have betrayed their trust as they were put on the seat of power.

It is also to be noted that when this feeling of helplessness mixed with anger was coming over the country, sections of the public sought redress through democratic means. The volume of public anger could have burst out into violent outbursts, but the sense of democratic temper has been so ingrained in the populace—which has to be credited to the orderly functioning of our democratic republic—that they sought redress in some form of constitutional process. And out of this search arose the remarkable phenomenon of the institution of Public Interest Litigation (PIL) in our country thanks to the wisdom of some of our outstanding luminaries on the Bench who by this revolutionary process sought to cut through the inordinate red tape in the judicial process and enabled the common people to intervene in defence of a fair-minded judiciary. It will be well to remember that the Public Interest Litigation is not just an ad hoc contraption to catch politicians. It already had a shining record in bringing justice in such cases as Bhagalpur blindings, violation of Labour Laws and in the move for speedy justice for undertrials held in incarceration for years. PIL is one of the finest examples of India’s contribution towards the enrichment of world jurisprudence.

It is strange that the Law Minister, in a recent discussion on television, did not hesitate to underplay the single contribution made by the process of PIL for strengthening the judicial system in the country. It is understandable that he is overburdened with the liability of pleading for his political peers, who have gone down in public esteem because of their indulging in corruption and thereby flouting the law of the land, but yet it is sad to find a Law Minister so blind to the importance of the expansion of justice through extension of the legal process as ensured by the IPL. No less disturbing is the spectacle of the Prime Minister lending a helping hand to the Chief Minister of Bihar who is trying to save himself from the corruption scandals being unearthed against him by holding a rabble-rousing rally which the Prime Minister did not hesitate to attend and pay tribute to the assailed Chief Minister.

This is but natural for the entire tribe of guilty politicians hauled up with the disclosures of a whole lot of scandals from the Bofors to the great loot involved in the Petrolem and Telecom Ministries. It is revealing how some of the star characters now being called for questioning by the CBI are reported to be contradicting each other, presumably to save their own skins. And as the investigating agencies have become alert and the courts are responding with alacrity, the cry is being raised by interested quarters about the terrible danger of “judicial activism”. Frankly there should be no fear from judicial activism, rather the common people, very often denied of the protection of the law because of the delayed functioning of the courts, have long been fed up with what may be called judicial inertia or judicial tardiness. Some of the pronouncements of the judges have no doubt hurt the politicians. But any citizen of our republic has the right to ask the politicians if with their hand on their heart they can claim that they deserve to be treated with kid gloves.

No doubt the judiciary, at least its leaders, are aware of the extent to which the prevailing corruption in society has entered the precincts of those entrusted with the distribution of justice. The politicians have to realise that their grudges against the judiciary would get no hearing from the alert public opinion of this country so long as their own record stands blackened with the exposure of every mega corruption in public life. Any move of the present govenment to tighten its hold on the appointment of judges in higher courts going further away from the Goswami Committee’s unanimous report will further discredit the government in the eyes of the public. It will be a betrayal out of the promises made by the ruling establishment. A pliant judiciary only adds to the discredit of the executive.

A good citizen will certainly demand a cleaner and alert judiciary. This can actually be furthered by honest and forthright judicial activism and not by running down the judiciary in the eyes of the public. The public which feels betrayed by the politician’s corruption is bound to demand that the judiciary must not hesitate to deal with corruption in higher places.

The critical situation in our country today calls for an active judiciary commanding the respect of the public for its integrity and energetic response to the prevailing misdemeanour of the politicians. The judiciary has also to realise that like Caesar’s wife the august members of the Bench have to command the unflinching confidence of the public that enhance the value of the democratic principles. Demagogic attack on the judiciary will by no means enhance the prestige of the politicain. He has to earn his lost place by helping in the due process of law to catch the guilty in his own ranks. Unless this is done, the politician will have to stand all the anger of public opinion for the way he has sought to undermine our democracy.

(Mainstream, March 29, 1997)