Tuesday, December 11, 2007

Supreme Court steps back

In recent years, there has been wide-spread criticism by politicians of the Supreme Court run judicial system, claiming that it has gone out of control, and that the judiciary was over-reaching into the realm of the legislature and executive. There have been a number of cases, such as the Bihar and Jharkhand assembly cases, the whole issue about the demolitions in Delhi, and the nursery admissions in Delhi, that have raised the hackles of the Government and politicians. There are many other such cases that have caused controversy, typically with the court acting on a number of measures that are more in the realm of policy making such as anti-ragging, environment, traffic, etc. A 2 member bench of the Supreme Court has recently come out against the activist nature of the court, and asked the court system to stay in check:

The bench said the apex court erred in disturbing the delicate balance between the three organs by interfering in the functions of assembly — Jagadambika Pal case pertaining to UP in 1998 and Jharkhand assembly case of 2005.
"In our opinion, these were matters pertaining exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it," the bench said. If the legislature or executive is not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for the candidates who would fulfil their expectations or by other lawful methods like peaceful demonstrations, it said.

No doubt there have been cases when the judiciary has over-reached, such as the cases where judges pick cases without anybody filing a case against them. It is also true that the world over, courts have been in the forefront of drastic change. In the US, it was the Supreme Court that started to throw away racial segregation in society and it is the courts that are seeking to resolve the complex minefield of individual rights vs. terrorist laws; in India, it is the courts that have stepped in and brought rights to people against the actions of the Government.
For a democracy, there is one fundamental weakness; this is know as the tyranny of the majority. It means that if there is a measure that appeals to the politicians but is otherwise inmical to law or the constitution, they can only be stopped by a system of checks and balances. In most countries, this is the system of the courts. It is the same in India. The Supreme Court judgment in the Bommai case and the Bihar case are judgments that are now used as the standard text for the actions of a Governor (who is now practically assumed to be the representative not of the central Government, but of the party ruling the central Government); it is the Supreme Court that has been fighting for cleaning of the country through the environmental bench (people forget that it was the Supreme Court that forced the implementation of CNG in Delhi over a kicking, screaming Sheila Dixit). The Supreme Court is the final decider of right and wrong, and it is necessary that this remain. And of course, it is the Constitution of India that is supreme, not the executive or parliament (these are creations of the Constitution). Executive inaction in India is legendary, and people are entitled to file for corrective action through the court mechanism. The grey area of policy making when the executive is clearly in the wrong needs to be worked out on a case by case basis, not as a sweeping condemnation as done by the 2 Supreme Court judges. This condemnation has the action of giving a boost to the decision of the executive to do what is politically correct, and not what is right.

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posted by Ashish Agarwal @ 7:39 AM