If one
travels towards the magnificent cluster of buildings that houses India’s Supreme
Court One gets to hear a steady pounding of what appears to be rhythmic drums
belting out a monotonous beat.
On
closer scrutiny, it’s the reassuring sound of the gavel ringing out various
judgments on matters put up in the myriad court rooms for their wise and varied
judgments of course within the frame work that the constitution has framed.
But
of late that steady, strident beat has made me apprehensive bordering on
anxiety at the manner in which- judiciary-one of our second last bastion of
Democracy is veering to, like the
-high
courts of Punjab are laying down rules for toll collection on the Delhi Gurgaon
freeway.
-One
of the Supreme Court benches lays guideline to conduct Auctions of valuable
spectrum.
-high
court of Gujarat unilaterally directs all vehicles in state of Gujarat to be
powered by CNG.
-Once
again a bench of Supreme Court decides that not 74 but 374 drugs needs to be
brought under price controls
-
A lower court in Maharashtra slaps sedition charges on a cartoonist
-Again
Supreme Court decides to Ban outright all iron mining first in state of
Karnataka & then in the state of Goa, pending investigations.
-
Once again the Supreme Court gets into crossing the “t”& doting the “I” and
lay down how the iron ore from Karnataka should be sold and unveils a complex
operating procedure on utilizing the sale proceeds.
For
a person leafing thru these pronouncements in the news on a lazy Sunday
afternoon this looks a case of the judicial arm steadfastly preventing
subversion/subterfuge of justice by the state machinery at large which is
overlooks the executive functions
Not
for me, I and surely many others firmly feel that these judges are going out of
their mandate, unfettered, crossing the invisible line separating judiciary and
the Executive.
When
we have a lax executive its sometimes needs to have some level of judicial
activism to prod the executive back in line & remind them of their
responsibilities
However
this judicial activism has seen a bad tendency to step into policy making which
is the EXCLUSIVE domain of the executive. And we very badly need the Judiciary
to rein in the tendencies.
A
study by duo of Sudhir krishnaswamy&Abhayraj Naik of the Law governance Development initiative at the
Azim Premji University revealed that the caseload of the Supreme court (SC)is growing at much faster rate than all
the high court’s & lower courts put together.
The
number of cases appealed to SC.between 2005 to 2010 is to the tune of 43000, a
sharp increase by 52%!
The
study also narrates The Indian government Paid Rs 50 crores as compensation to an
Australian based company “Whites” as ordered by the united nation commission on
international law arbitration
In giving the award it said
“Tribunal has no difficulty in concluding the Indian judicial system’s
inability to deal with White’s jurisdictional claim in over nine years and the supreme
courts ability to hear White’s jurisdictional appeal for over five years
amounts to undue delay and constitute breach of India’s voluntarily assumed
obligation of providing White with effective means of asserting claims and
enforcing rights”
and
yet and yet in spite the SC having such a huge backlog and (numbers
mounting)are seen being quick to take up issues related to Public Interest Litigations (PIL).
PILs
are a bane of India, with India housing the world largest Hound pack of NGO‘s,
-These
NGO.s clog the systems with litigations & it’s quite bewildering as to how
the NGO’s afford to fight the battles in the SC?
It’s
even more bewildering that SC is quick on uptake of these litigations and
quicker to pronounce a “Stay” as an interim relief!
PIL’s are taken up by courts with passion, and
a dishing out a “stay” for PIL’s are never a substitute for analysis of hard
facts rather than bringing things to halt
As
the incoming tide lifts all the boats, let’s not have a court which LIFT’S up most
(if not all) PIL’S that reach the shores of the court
Taking
the particular case of outright Ban on iron ore mining, the SC vision is myopic
in nature and catastrophic in consequences.
The
macro micro vision at altitudes where the judiciary sits in their high backed
chairs is shockingly enveloped with thick- pea soup fog which Delhi is famous
for.
At
the macro level The Mining Ban in Karnataka has made massive steel plants run
at miniscule capacities (sometimes below 50%) The resulting lowering of
production has increased Steel Imports
Plants
put up with high Debt components are seeing faltering of interest payments to
Banks
Therein,
spreading their sickness to other sector of economy.
Taxes
collections both direct& indirect take a hit. Steel Imports mean foreign
exchange outgo, aggravating CURRENT ACCOUNT Deficit.
Ban
on mining, also led to halt of Exports again resulting in drying up Export Duties
to tune of 1000’s of crores, again aggravating CURRENT ACCOUNT Deficit.
The
ore which gets exported to steel plants overseas have to face sudden drying up
of raw materials, which in turn gave the nation a big hit with respect to
credibility as reliable source in the world market….
The
effects are manifold than this space can do justice to.
At
the micro level there is a big hit to the unsuspecting local populace - numbering
in lakhs- by a judicial drone attack from the Supreme Court on an action
initiated by a PIL.
This
sizeable population suddenly find themselves unemployed without any means of sustenance,
with idling assets.
If
there is a need, to clean up the Mining Industry, the path to follow should not
be at the expense of economic and Industrial health of the nation &
certainly not at putting common man on the streets, with his livelihood snatched
While
the courts & the attendant legal luminaries go into technicalities the
larger picture of courts of land duty bound to initiate dispensing justice is
given the go bye, making us wonder
Whether
the motto “whence Dharma, Thence victory” is serving which Dharma and
thence Victory
for whom?
As
in case of the mining Ban whether Dharma is to have the man on the
street gainfully employed for his sustenance or victory for someone who
is a serial “PILitigator”.
There
appears to be a clear divide in the judiciary
Seated
in one side of the judicial divide are distinguished old school judges who have
a distinctive socialistic (read anti capitalist) frame of mind, whose judicial
DNA cannot come to term with spring of the entrepreneur movement post
liberalization and its attendant (so perceived) problems like land use,
resource use ,environment etc.
On
the other side, equally distinguished brother judges foisted in hallowed
corridors of judiciary, are living in present, and are travelling the same road
this nation needs to
Well
aware of realities looking thro glasses, in spirit of the law, and not the law
per se
the balance is however weighed down towards the former, as can be seen in the judicial drone attacks, triggered by PIL’s
the balance is however weighed down towards the former, as can be seen in the judicial drone attacks, triggered by PIL’s
If
one looks up at the statue of lady
justita, adorning many a court rooms, standing silently blindfolded, one
can see her holding aloft, scale in the right hand, a correctly balanced scale depicting
a balance of truth and fairness.
Most
of us only look at the scale and what it depicts; one needs to lower the gaze
at the grounded double edged sword in the left hand for this symbolizes the
power of reason and justice as the two edges of the sword.
The
sword that gets used for PIL’s, in regular intervals, is definitely does not belong to lady Justita as the swathe cuts up many an
innocent without any reason or justice
And courts seem unmindful of the collateral
damage it brings about cutting short livelihood of lakhs.
To quote S. H. Kapadia, the Former Chief
Justice of India on policy making role by courts
“Not
ordinarily amenable to judicial review unless the policy are contrary to
statutory or constitutional provisions or arbitrary or an irrational or an
abuse of power”
Heaven is a place where the army is in the
Barracks,
The Executive is in the Parliament and
The
judiciary is firmly ensconced in the 22 acre campus that houses the Supreme
courts.
Remaining
firmly within the Laxaman
rekha of proprietary,
justice and fairness for all
And
refraining from, excessive JUDICIAL activism trespassing into a realm of
democratically elected.
And
firmly committed to, TRUTH, FAIRNESS, and REASON AND JUSTICE TO ALL.
