Higher Judiciary: Movers & Shakers

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Judges and judiciary playing to the gallery by ridiculing the elected representatives and the executive at every opportunity would make better sense if they also put up a system and mechanism to pull up the Lordships for criminal delay, accumulated arrears of litigation like unattended municipal solid waste at dumping sites and corruption in the judiciary almost on par with what prevails in all-India services.

The recent judgements of the apex court have been received with applause and criticism. The judiciary has regained the confidence of the middle class and the small vocal civil society constituency. The community of politicians and bureaucrats, corporate India and legal analysts hold that the higher judiciary is swimming in the ponds of populism in the name of activism. For the majority of India’s millions, it does not make any difference as their lives can change for the better only through affirmative action by the executive.

Undoubtedly, judicial activism and public interest litigation has come to stay as an arm of redress and dispensation of justice. As long as the boundaries are respected there can be no clash between the “unelected” judges and the elected representatives. Looking at the past, tensions and conflicts between the judiciary and executive have finally proved to be beneficial to the people and democracy. At the same time, the judiciary should avoid the temptation to stray into small, petty, routine and purely executive domains. Instances of such grazing are seen when the higher judiciary is engaged in adjudicating on age of nursery admissions, supply of water to schools, size of speed breakers on roads, identifying buildings to be demolished, number of free beds in hospitals, solid waste management in Panchayat and Municipal domains etc..

The appointment of Mr. Rohington Nariman as the counsel for Union of India in a PIL filed by an NGO against Telecom Minister Mr. Kapil Sibal without the consent of Solicitor General and his consequent resignation is a by-product of the tensions caused by the decisions of the Supreme Court mainly in respect of 2G Spectrum scam and the snail’s pace of the SIT in the multi-crore black money laundering case.

Jail for economic crimes!

Bail, not jail has been the rule. It is the maxim adopted by the judiciary in the light of the sweep of the fundamental right of life and personal liberty enshrined under Article 21 of the Indian constitution. Neither bail is a verdict of innocence, nor jail a decree of guilt. In the words of Justice Krishna Iyer “bail is integral to a socially sensitized judicial process”. Courts have been liberal in granting of bail except in instances of tampering with records, witnesses, possibility of interference and gravity of the offence. It is well established that jail should not be a punitive measure before trial. Hence, it is surprising that the courts have denied bail to the Telecom minister A. Raja, the main accused in the multi-crore 2G spectrum scam and the big corporate guns of Unitech Group, D B Realty including Reliance officials. Refusal to follow the track of ruling bail for DMK’s Kanimozhi even when precedents under Section 437 of Criminal Procedure Code provide the discretion in case of women, even if accused in a murder case is an example of stern approach on the part of judiciary.

Confinement to jail before trial is normally for heinous crimes or where there is probability of causing harm for the smooth conduct of trial and delivery of justice. This doctrine seems to have been renovated when the Supreme Court cancelled the bail of the accused B. Ramaraju purely on the basis of the enormity of offence.  The apex court is normally slow in cancelling bail already granted. However, ruling the Satyam episode as the greatest corporate scam of the commercial world responsible for a financial storm which duped lakhs of shareholders, the judges made a departure. This decision had the bearing on sending the rich and top bureaucrats to jail in the 2G scam.  The court noted that offences against body and property affect one or few, whereas economic offences have impact on society at large, particularly when public offices are brazenly used to defraud. It means that the impact of offence on society would be a yardstick to measure the gravity of offence in deciding on bail in future. In the 2G Spectrum case, the court also noted that the CBI took a long time to arrest the accused. This according to the Court is an indicator of the hold or influence they wielded due to their public offices. This also gives credence to the possibility of tampering with records and witnesses. Earlier, the gravity of offence was more linked to the punishment of death or life imprisonment. Now, it is also linked to the economic and political clout of the accused and the magnitude of economic crime.

With acquittals becoming a routine due to shoddy, deficient and delayed investigations the denial of bail by the apex court maybe relished by the middle class and civil society. The courts and judges may be also in search of window dressing measures to regain the losing confidence and credibility of judiciary. To some extent decree of jail before trial provides vicarious pleasure to the civil society since the accused are confined to the unpleasant surroundings of prison walls. It is a temporary feeling of achievement that “law also grinds the rich and powerful”. This is a negative way of dispensing justice and gaining confidence of people.

Law maker-keeper-giver-breaker unholy nexus

In the Black Money case (Ram Jethmalani v/s Union of India) the court has partially taken over itself the executive task. Courts should definitely intervene when constitutional provisions are violated or illegal appointments effected. The role of the judiciary is also to review policy but certainly not to evolve one. If the judiciary evolves policy or makes appointments, then who will rule over legality? The quashing of the appointment of CVC because of a charge sheet pending may be technically in order but the court laying down guidelines for future appointments to CVC is encroaching into the realm of the executive. Similarly, court supervision on the work of the Special Investigation Team (SIT) in the black money case is understandable, but packing two former retired judges on the SIT without any intelligible criteria should have been avoided. The status and commitment of SIT does not automatically improve merely because former judges are accommodated. Added to this, the apex court has made observations which have no link to the case and prayer of the petitioner. To quote from the judgement, “Increasingly, on account of ‘greed is good’ culture that has been promoted by neo-liberal ideologues, many countries face the situation where the model of capitalism that the State is compelled to institute, and the markets it spawns, is predatory in nature. From mining mafias to political operators who all, too willingly bend policies of the State to suit particular individuals……..” This is uninvited verbosity in the judgement and there are ample such sermons. Though, they do not form a part of the crux of the decree and they may be matters said ‘by the way’, such statements are rank populist, not expected from seasoned judges in serious legal issues.

Looking at the state of the elected executive and the sleepy cum lazy administrative wing of the executive, judicial intervention is needed without encroachment into the exclusive executive powers. Judges and judiciary playing to the gallery by ridiculing the elected representatives and the executive at every opportunity would make better sense if they also put up a system and mechanism to pull up the Lordships for criminal delay, accumulated arrears of litigation like unattended municipal solid waste at dumping sites and corruption in the judiciary almost on par with what prevails in all-India services.