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Mainstream, VOL LIII, No 17, April 18, 2015

Courts and Social Justice Litigation

Friday 17 April 2015, by Rajindar Sachar

Prime Minister Modi’s gratuitous diatribe of the judiciary being influenced by five-star social activists was a cheap joke which brought down the prestige of the biggest political office of the country. And to make this observation at the Chief Justices Conference, attended by the Chief Ministers of States, was an uncalled for jibe at the judiciary and a dangerously provocative example, if allowed to be followed by the Chief Ministers.

The remark shows ignorance of the kernel philosophy of a democratic country like ours where the three wings—the Executive, Legislature and Judiciary—have an equal role within our Constitution, but still must inevitably cannot help breathing on each other’s neck. But statesmanship and sobriety require mature response from all instrumentalities. Unfortunately Modi, the provincial Chief Minister, has not been able to find his feet of working within 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’s quiet response that “Indian judges remain as fearless as they ever were” was a dignified response.

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 express provision for 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 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 since long been judicially active in giving relief in social action litigation to Labour, to victims of custodial violence, to the 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 the politicians. This charge of alleged interference by the Courts has only now been put in issue because the fire of judicial activism is coming nearer home to the high officials and politicians who had falsely hypnotised themselves into believing that they were above the law.

The Prime Minister has, in spite of strong TV 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 the hidden secret. The Supreme Court has passed various orders to uphold the human rights of the people, especially of the deprived sector, 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 Jaya Prakash Narayan, the socialist leader. The PUCL by its constitution and in fact forbids foreign donations. Its funds are raised locally in smaller sums. It challenged and got some relief in all draconian laws enacted in the name of fighting terrorism like TADA, POTA, Unlawful Activities Act both by the Congress and BJP governments.

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

The right to reject a candidate in an election, though recommended by the Election Commission, was withheld both by 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 at the instance of the PUCL.

The prohibition of MP and MLAs to continue as members after their conviction was the result of a petition by a common citizens’ group. So was the exposure of illegal allotments of spectrum and coal blocks that were set aside by the Supreme Court.

It is not necessary for me to go into details to recapitulate how but for judicial intervention many of the urgent public affected matters would have remained in limbo. Thus the Supreme Court’s declaration in gender harassment cases led to the framing of legislations. Similarly but for the Supreme Court the independent status of the Central Vigilance Commission would not have been established. Nor would have police reforms been put on the anvil, so as to hold accountable the police for custodial illegalities, notwithstanding that the Police Comm-issions have recommended police reforms in their reports submitted over decades back. This was all at the instance of the civic conscious citizens’ group.

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

Yes, I concede there have been decisions made by the government at the instance of five-star personnel—but they are not at the instance of Courts—they are the result of the direct link-up between the Modi Government and the big corporate sector. Not to appeal in the Vodafone case resulting in a loss of Rs 8000 crores to the government. The Modi Government pressuring the State Bank of India to guarantee loans to the extent Rs 6000 crores to industrial houses 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 at the judiciary was totally uncalled for—more especially when you ignored such wide, ever-expanding moles in the Central Government’s own eyes.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23 @bol.net.in