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14 November, 2011

Judiciary’s growing clout

BRP Bhaskar
Gulf Today

The clout of India’s Judiciary, already considered the most powerful institution of its kind in the world, continues to rise, thanks to its successful interventions to right the wrongs of the Executive and the Legislature.

The Constitution envisages a system of mutual checks and balances by the three limbs of the state. While the Judiciary has exercised its corrective power extensively and effectively, internal weaknesses have prevented the Executive and the Legislature from playing their role well.

Over the years, the Judiciary, exercising its exclusive right to interpret the provisions of the Constitution, has enlarged its powers. Today it has the last word on the Constitution. Early Supreme Court verdicts had said Parliament’s right to amend the Constitution was unfettered. Later, the apex court said there were limits on its amending powers and ruled that constitutional amendments were subject to judicial review.

The Judiciary also has the last word now on who should be made judges of the superior courts, the apex court having appropriated to itself, through successive judgments, primacy in the consultation process that precedes judicial appointments.

It also has assumed legislative powers with a view to filling perceived gaps in the framework of laws. The Supreme Court verdicts prescribing procedures to be followed by the police in making arrests and laying down guidelines for dealing with complaints of sexual harassment at the workplace are now part of the laws of the land.

The Constitution lists “justice — social, economic and political” as the first of its several objectives. The Judiciary vastly expanded the scope for its intervention to ensure justice when it gave all citizens the right to move courts for redress of grievances through public interest litigation (PIL). Earlier, only an aggrieved person had the right to seek remedy from the courts.

The first public interest litigants were social activists and voluntary organisations. Later, politicians entered the field. Some of them appear to have found the courtroom a better battleground than the legislative chamber.

The 2G scam case in which A Raja, a former Dravida Munnetra Kazhagam member of the Central government, Kanimozhi, MP and daughter of DMK chief M Karunanidhi, several top bureaucrats and a few corporate honchos figure as the accused arose out of a PIL filed in the Supreme Court by Subrahmanyam Swamy, president of the Janata Party, a relic of the collective of that name which had seized power in the 1977 elections, ousting Indira Gandhi’s Emergency regime. Swamy and his party are not significant entities in parliamentary politics.

Former Kerala Chief Minister VS Achuthanandan’s vigorous pursuit of a corruption case, which he took up as PIL, resulted in a jail term for R. Balakrishna Pillai, a former minister belonging to a rival party. He is involved in PIL cases against some other political rivals also.

Achuthanandan’s Communist Party of India-Marxist is the state’s largest party, and the Left Democratic Front which it heads has been wielding power alternately with the Congress-led United Democratic Front for three decades. But in the five years that he headed the Executive he could not register a victory comparable to what he achieved as a public interest litigant.

It was a petition filed by the pro-CPI-M Democratic Youth Federation of India that led to the Supreme Court’s order banning the use of the pesticide Endosulfan in Kerala, where its indiscriminate use had caused severe public health problems in some areas.

When a civil society group drew attention to the partisan attitude of the Gujarat police the Supreme Court appointed a special investigation team to probe cases arising from the 2002 communal riots. Last week, a trial court gave life term to 31 persons in one of the cases.

PIL has no doubt added a new dimension to democracy. However, the political parties’ increasing reliance on the Judiciary to keep the Executive and the Legislature on the straight path is a sad commentary on the quality of Indian democracy.

From time to time the Judiciary has come under criticism for its activist role. Even some distinguished retired judges have opined that it overstepped its limits on a few occasions. However, public opinion appears to favour its interventions inasmuch as they provide relief against the Executive’s acts of omission and commission. The Executive must take note of this and set its house in order.--Gulf Today, Sharjah, November 14, 2011.

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