Views: Judiciary

Views: Judiciary: "ACTIVISM SANS DOMINANCE “The despotism of an oligarchy’- working like gravity by night and by day gaining a little today and a little..."

Views: Judiciary

Views: Judiciary: "ACTIVISM SANS DOMINANCE “The despotism of an oligarchy’- working like gravity by night and by day gaining a little today and a little..."

Views: Black vs.Khaki - Rule of Law under cloud

Views: Black vs.Khaki - Rule of Law under cloud: "BLACK VS. KHAKI Rising intolerance and Indian democracy The recent spate of violenc..."

Judiciary

^{ACTIVISM SANS DOMINANCE}

“The despotism of an oligarchy’- working like gravity by night and by day gaining a little today and a little tomorrow and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped”.

---------Thomas Jefferson

The recently made observation by the Chief Justice of India that the differences between the two wings of the government(judiciary and Executive) is, in a way,’ desirable’ seems to flicker in mock hyper reality’ when viewed in the light of repetitive confrontation between the two which is rapidly assuming grave dimensions. Unlike past, political parties –cutting across their ideological lines-have closed ranks behind an assertive President of the Lok- Sabha that has made the ‘inter- institutional’ conflict more alarming.

The much ‘esteemed’ judicial activism, seen as the ultimate savior of public interest, has started to unfold its long term adverse implications in the larger context of governmental functioning. Be it the case of land ceiling, cash for question scam, office of profit bill, exercise of clemency or the most recent issue of OBC reservation in higher educational institutions, both the institutions have failed ,on one or other occasions, to show the spirit of mutual accommodation and operational synergy in the greater interest of smooth governance.

It would be grossly unfair not to accept the fact that activism of judiciary has not only served the larger public interest but has also strengthened the cause of democracy by issuing judicial commands from time to time to enforce greater transparency and accountability in the administration.

But, the Judiciary very often fails to appreciate that apparent failure of Executive

‘inter alia’stems from its being the most ‘visible’ face of the government the actions of which are subjected to the closest public scrutiny, ‘contra posed’ to other two wings of the government. Further, unlike judiciary and legislature, the Executive responsibility and functions has no definite constitutional ‘contours’. In other words, in the constitutional ‘scheme’ of things, Executive functions include anything and everything that remains after making specific allocations to the other two wings of the government which renders its job more challenging.

On the other hand, the Executive needs to accept this harsh reality that judicial activism is rather a direct outcome of the formers unarguable ‘inactivism’.The indisputable domination of executive ‘ukase’ by judicial ‘commands’ and its disputable foray into the arena of policy-making lies to a great extent in the overwhelming support of the people at large who have reposed the highest level of confidence in Judiciary to protect and promote their rights. No doubt, we have yet to come across a breed of judges having developed and perfected the art of human trafficking.

But, individual acts of omission and commission can not be a ‘credible’ ground to justify any alteration in the constitutionally ‘ordained’ balance of power among the three wings of government

Our Constitution is one of the most ‘balanced’ one which does not leave any scope for any of the wings of the government to ‘over reach’ its jurisdiction to assume dictatorial powers. The distribution of powers, privileges,rights and duties among the three wings of the government has been made ‘unequivocally’ clear in our Constitution as per which Parliament should enact laws, Executive has to enforce it and the Judiciary reserves the final powers of its(laws) interpretation.

Nevertheless, the efficient and effective functioning of the whole governmental machinery presupposes (quite genuinely) the ‘mutuality’ of jurisdictional accommodation because the three wings can not function under ‘water-tight’ compartments. It is here that the crux of the whole problem originates when one of the institutions starts feeling the heat of gradual transformation (implicit or explicit) of innocuous accommodation into ‘disturbing’ domination. And the whole process of this jurisdictional ‘trespass’ (if it so happens) is accompanied by such a diverse number of interpretation and counter-interpretation (even legal luminaries get divided very often) that it defies a clear cut

Judgment.

Thus the apparently simpler ‘statutes’ develop an ensemble of technical as well as substantive complexities when put to application. As for instance, if the Art. 142(2) of the Constitution confers all and every power on the Judiciary to ensure attendance before it, call for any document and punish contempt- Art.74(1)and (2 ) explicitly empowers the Executive to restrain the courts from enquiring into the merit of the its advice being tendered to the President. In conformity to the principle of Balance of power the Legislature, on the other hand, enjoys the supreme law-making power by which not only it decides the powers, privileges and immunities of its members (Art.105) but can also regulate the jurisdiction of the other two wings in many ways. The conflicting situation arises when a judicial verdict while being in consonance with existing laws appear to be against the wishes of the legislature and the latter decides to overpower the hurdle by way of bringing the facilitative legislation thus bypassing the former in effect(OBC reservation) or vice versa.

No doubt, given the nature of complexities involved, we need a much enlightened approach towards the whole issue keeping uppermost in mind the long cherished values of democracy and good governance. What is required is understanding and interpreting the substantive provisions of the Constitution in its truest spirit which alone can preclude all the confusion surrounding ‘enaction’ and ‘enforcement’ of laws. Though the intermittent ‘noise and chaos’ (someone called the very beauty of any democracy) may not be undesirable yet the more serious and regular trading of ‘charges’ can be avoided.

The responsibility lies equally with all the three wings of the government but we would welcome ‘Judicial initiative’ here because it is the Judiciary only which has been ‘conferred’ with the final powers (Constitution) to decide---Has there been any trespass on other’s territories? Further, the other reason can be seen in the age-old saying -

“all of us are under law and the law is what the judges say it is”.

-Sajjan Singh

(The author is the senior

Faculty of Public Admn.

associated with Rau’s

IAS. )

Black vs.Khaki - Rule of Law under cloud

BLACK VS. KHAKI

Rising intolerance and Indian democracy

The recent spate of violence witnessed inside the premises of Madras High court orchestrated by lawyers and policemen has exposed not only the lamentable lack of mutual respect and confidence between the two professional fraternities so integrally associated with our legal system but also the consistently falling standards of behavioral propriety in general. Though the honorable Supreme court while taking a serious cognizance of the case has appointed a retired judge of the apex court to inquire into the what ,how and why of the brutal lathi charge (assaulting lawyers, their unsuspecting clients, staff members and end even our honorable judges) resorted to by the police, it is secret to none that the whole drama of disturbing misdemeanor on either side of the fence involves questions larger than what appears on the face of it.

Any dispassionate probe into the incident that is free from any passion, prejudice and presumption would demand appreciation of the sequence of events beginning from physical assault on senior advocate Mr.Subramanium Swami and ending with police excess, interspersed quite significantly with equally, if not more condemnable act of burning of police station by lawyers. No doubt, vandals in khaki as well as black displayed remarkable uniformity in one respect that is scant regard for the supreme law of the land (more particularly freedom of speech and expression under art.19 and right to life with human dignity under art.21) and the criminal violation of the canons of respective professional conduct.

If there is any administrative agency in India which has failed quite miserably to orient its structural and behavioral profile in sync with the ethos and spirit of a modern democratic state, it is police. One after another incidents since long have kept on suggesting the imperativeness of bringing a multi-pronged reforms in the most important law enforcement machinery encompassing quality training, proper psycho-behavioral orientation imparting sensitivity towards human rights, better service conditions, amendments of obsolete laws regulating the overall power and functions of police, greater operational autonomy, more sophisticated technological paraphernalias to name a few, but the successive governments have failed to reflect genuine political willingness for reasons better known to them. In Toto, Indian police system is yet to go a long way to resuscitate itself from the colonial legacy of the past in so far as its thinking, method and style of operation is concerned.

Nevertheless, we just can’t afford to single out our police system when it comes to criticize lawlessness,intolerance,insensitivity and undemocratic mien. The l’affaire Madras high court has given ample testimony to the fact that the lawyers are not far behind in their subversive propensity towards the accomplishments of not-so-well placed objectives.

The remarkable promptness displayed by the Supreme Court to identify the police officers responsible for ordering lathi charge did not find any judicious extension to locate those vandals who secured permission from nowhere to set the police station on fire which actually preceded the extreme police action.

Further, the issuance of order by the apex court regarding the transfer of senior police officers out of Chennai and appointment of retired Supreme court judge of the apex court B.L.Srikrisna to probe into incident smack of some sort of implicit presumption and pre-occupation in approach against the police. We have yet to come across any concrete measures emanating from honorable courts or bar council directed towards disciplining their unruly brethrens.

The larger question in front of us today is to address the consistently increasing tendency of general intolerance, violent expression of interest and invasive pursuance of them, thus challenging the very spirit of democracy. Though it may appear in different form or degree, when the members of Ram sene assaults women to protect bharatiya samskriti; when hapless workers and vendors are beaten up to protect the cause of Maratha manus; when police men in the most adverse service conditions are humiliated and when the sacrosanct corridors of justice is subjected to man-ordained storm- the one who dies the first death is democracy and democracy. No doubt, a price which is too unconscionable to be borne by a nation which has achieved and retained its democratic credentials against all odds for long.

- Sajjan Singh