WHO WILL TAKE THE COURTS TO COURT

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 

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.