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20 April, 2009

Citizen’s Report on Governance: State of the Judiciary

This is the second post based on the Citizen’s Rep[ort on Governance and Development 2008-09, produced by the National Social Watch Coalition:

The review of the Indian Judiciary in the Citizen’s Report on Governance and Development 2008-09 focuses on the debate of courts venturing into the domain of the legislature and the executive.

Locating the debate on judicial self-restraint and judicial intervention within the framework of ‘separation of powers’, the report examines the issue in the context of Justice Katju’s and Justice Sinha’s
viewpoints.

The report suggests a nuanced approach is needed to examine the question of where, why and how to draw the line between legitimate and improper judicial activism.

An analysis of judicial response through the court verdicts covers the
whole gamut of cases on constitutional governance and political
accountability. Starting with the case of ‘cash for questions’, it
closely examines the question of legal wrong vs the moral wrong.

The report cites another case of great significance, from the
standpoint of constitutional law, a question arose as to whether
legislations can be immunized from legal challenge (on the ground of
fundamental rights) by Parliament as a consequence of their insertion
into the Ninth Schedule of the Constitution.

Cases on environment, development rights and civil liberties are also
examined. The section dealing with the cases on forced land
acquisition, displacement, resettlement and rehabilitation issues
cites the example of Nandigram where Kolkata High Court upheld the
position of law and gave a range of directions to help the situation
there, on the question of safeguarding the fundamental rights of the
people of Nandigarm.

A verdict of the Supreme Court last year on a petition filed by the
Supreme Court Bar Association raised points of considerable
importance. The Bar Association pointed out that appointment of a
retired judge as chairman of the State Legal Service Authority in
different States has the effect of inhibiting the effectiveness of the State Legal Service Authorities.

The report calls for reforms that will reduce the numbers of
pending cases. At present more than 40,000 cases are pending in the Supreme Court and 3.30,689 cases in high courts for more
than ten years.

Earlier post on the subject: "Citizen's Report on Governance and Development 2008-09". Another post will follow.

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