Thursday, May 03, 2007

Judiciary versus the Government

There has been a lot of debate recently over the power of the judiciary vs. the power of the Government and the legislature and whether the judiciary is over-stepping itself. Such kind of statements have been made in measured tones by the Prime Minister and the Speaker of the legislature, and in much more shriller tones by the rest of the political class. Now this can be a highly legal discussion, but since everbody in the country will get affected by the shape of this debate, it would be good to take more of a citizen's approach to its. This is actually pretty easy since I am not a lawyer, and hence a legal approach would be beyond me as well.
What defines a country ? A country is defined by its people, and by their rights and obligations. These rights and obligations is what separates democracies such as India, the US, European countries, etc from dictatorships/monarchies such as China, Saudi Arabia, and Iran (also more or less a dictatorship since the clergy are dominant). Towards this end, we have seen that countries need to respect their constitution.
Now in India (as in most countries), the organs of the state are derived from the constitution. Hence, the legislature, the executive (government) and the judiciary are all institutions that took birth from the constitution. Their roles are different; the legislature makes the laws, the executive is formed from the legislature and is responsible to it. The executive is the one that governs the country, ensuring that development happens, that people's rights under the constitution are protected.
The judiciary plays a multi-pronged role. It is the one that actually enforces the laws, deciding the application of laws. They also play another role, which is that of being the custodians of the constitutions, deciding on whether laws passed by the legislature, as well as actions taken by the executive are compliant with the text and intentions of the constitution. For this, they refer to the actual text of the constitution as well as the proceedings of the constituent assembly where discussions about making the constitution were held.
This second role is all the more controversial. No legislature, puffed up with their own importance, can digest the fact that a court (comprising of unelected people) can overturn a law passed by a majority of the people's representatives. However, it is this very nature of the court that makes its actions necessary. This is the only structure that can protect the rights of minorities against a tyrannical majority. In the past, courts have been a major instrument for and against change. In the US, it were the courts who started the process of racial desegregation; it were the courts who gave women the right to have an abortion. Closer home in India, it is the courts who have been called upon to resolve major disputes such as the disputes about privatization, about the rights and powers of the Election Commission, about whether the actions of the government fit the definition of secular and so on.
In India, because of inaction of the executive, the courts have stepped in far more. Who would dispute with the court over its action in cleaning Delhi by pushing for CNG and removal of polluting industries (over the wishes of the executive); it is the courts who are challenging inaction by the executive in getting the major river cleaned, about getting traffic laws enforced, about taking action in the case of harassement, rape, dowry by defining judgements that act as defacto laws; the examples are numerous.
Where the courts leave themselves open to criticism is when they get party to frivolous cases; the cases against Tamil actress Khushboo, against Shilpa Shetty and Richard Gere, the action taken by Justice Chawla of the High Court in the Bofors case, etc. These are all disgraces, and need to be corrected. In addition, the judgement by the court in the case of the JMM MP's and their money induced voting gave a strong boost to corruption. The Public Interest Litigation is an important route, but it should not be allowed by the courts to be abuse. Similarly, since the executive does not seem to be taking much action on reducing the number of open cases in the country, the court needs to move further in this direction. The example of Gujarat where evening courts have been setup is a good example to follow.
In summary, it is absolutely essential that we stick to our current system where we have an independent judiciary that can prevent misdeeds on behalf of parliament and the government. Else, if the executive feels that the judiciary is a pliable instrument, then we face situations such as the emergency.

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posted by Ashish Agarwal @ 12:37 PM