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HindustanTimes Mon,22 Sep 2014

Shift from judicial activism to restraint

Satya Prakash, Hindustan Times  New Delhi, August 28, 2014
First Published: 00:13 IST(28/8/2014) | Last Updated: 00:15 IST(28/8/2014)

The Supreme Court’s verdict refusing to issue directions to the central and state governments not to appoint tainted politicians as ministers signals a major shift from judicial activism to judicial restraint.

This verdict from a constitution bench headed by Chief Justice RM Lodha comes barely two days after the SC clarified in the coal scam case that it was not for the courts to decide what policy the government should adopt for distribution/disposal of natural resources.

These two judgments are in sharp contrast to a series of verdicts delivered in quick succession by the SC last year.

From immediate disqualification for jailed lawmakers to banning of freebies and empowering of voters by giving them none of the above (NOTA) option in electronic voting machines, the SC actively put the political class on the back foot, often inviting criticism for its activism.

This year too, the SC gave two such verdicts. In March, it set one-year deadline for lower courts to complete trial in cases involving MPs and MLAs; ordered day-to-day trial in all such cases involving legislators. In May, the SC ruled that election of a winning candidate would be void if a court finds a case of misinformation or suppressing of material information in the affidavit filed with nomination paper.

Earlier, the court had forced candidates to declare their educational qualifications, assets, liabilities and criminal antecedents, if any, at the time of filing of nomination papers.

In this backdrop, the SC’s unwillingness to issue any directions on the issue of tainted politicians is a departure from the trend witnessed in the recent past.

“No doubt, it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the council of ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution,” the SC said.

The bigger issue, however, is to decide whether a lawmaker with a tainted past should be even allowed to contest polls. Unless entry of criminals into politics is checked at the entry stage, it would be difficult to prevent criminalisation of politics in India.


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