PM?s caveat on judicial interventions
AT THE all-India conference of Chief Ministers and Chief Justices on March 11, PM Manmohan Singh expressed unhappiness at increasing judicial activism. As for abuse of PIL Jurisdiction, the Supreme Court itself has been warning the courts to guard against the evil and to be very cautious and careful in the use of this extraordinary weapon.india Updated: Apr 13, 2006 11:51 IST
AT THE all-India conference of Chief Ministers and Chief Justices on March 11, PM Manmohan Singh expressed unhappiness at increasing judicial activism.
As for abuse of PIL Jurisdiction, the Supreme Court itself has been warning the courts to guard against the evil and to be very cautious and careful in the use of this extraordinary weapon.
The Press has taken PM's observations to mean an indirect criticism of the Supreme Court's and High Court's recent verdicts on cases like the Bihar Presidential rule case, Bangladeshi infiltrators, Mr Q's London account release, the Delhi unauthorised constructions demolitions, the MPs' expulsion, the AMU case, the communal quota in services and educational institutions and so on.
So far as MPs' expulsion matter is concerned no verdict or interim order has yet been given. But PM's speech may be treated as a warning on the lines of the criticism by Speaker Somnath Chatterji.
Nobody can sympathise with the guilty legislators, though most political parties instead of hanging their heads in shame have mounted a counter-offensive on the investigative journalists who exposed the scandals.
The MPs and MLAs are not even prepared to consider the Communists' plea for scrapping the discretionary “local area development” funds running into crores placed at the disposal of each of them individually. So far as the Supreme Court is concerned it may hear the matter only because there is conflict of rulings of different High Courts on whether a House of legislature does possess any power of expulsion. The legislators on their part too are not prepared to define their privilege and are content to abide instead by the ancient rulings of the House of Commons. So much for our mental independence!
On demolition of unauthorised constructions it is certainly hard for the people affected who have invested crores of rupees on their construction and established their business establishments.
But who is to blame for this state of affairs except those affected persons and the local politicians who had encouraged them, for building their own vote banks? The result has been traffic congestion and inconvenience to the general public. It is no doubt a difficult choice for the judiciary. But the remedy of balancing these claims lies with the legislature itself.
Most other cases which have evoked the ire of the UPA Government reflecting on their political compulsions. They are prepared to bend the law for serving their personal (as in Mr Q's case) or political interests (as in the Bihar and Jharkhand Governor's cases). Political interests include what they perceive to go to help them in electoral gains through being shown as extra soliticitous for one community whose vote bank earlier migrated from their parties to others like SP and BSP or now in danger of being lost as in W.Bengal, Assam and Bihar.
This perception of their's may ultimately boomerang on the UPA. Poor Arjun Singh can be no match for Haji Yakoob or the ever growing tribe of fatwa entrepreneurs.
(The recent fatwa by some Muftis, under post-Varanasi pressure of Muslim public opinion itself, condemning terrorism is however commendable)
So far as the courts are concerned it is not optional for them to shut their eyes to an unconstitutionality brought to their notice by an aggrieved party. Art. 14 of the Constitution guarantees equality before the law to all citizens.
Article 16 guarantees equality of opportunity in matters of employment under the State and Articles 15 and 29 (2) guarantee equality of opportunity in matters of admission to educational institutions. These are all subject to “reasonable” classifications and to exceptions in favour of “socially and educationally backward” classes only.
The Supreme Court had long ago held in cases from UP and Bihar that the entire rural population cannot be characterized as “socially and educationally backward”. The constitution makers headed by Nehru, Ambedkar and Maulana Azad had firmly rejected the concept of communal quotas. It was in fact those tallest leaders who had further got a law passed to make it clear that AMU was not a minority institution but a national institution.
The Supreme Court is in fact to be faulted for having succumbed to upholding the 50% quota for Christians in admissions to the St. Stephens College (undisputedly a minority institution), a ruling that was criticised in some other judgments but has been upheld again by an eleven-judge judgment.
The same ruling is now being sought to be taken advantage of by the AMU but it could not so far succeed because it was held by a unanimous Constitution Bench some forty years ago to have been “established” not by Muslims but by an Act of British Indian legislature. That ruling is now sought by AMU to be reviewed, and the Central Government's pressure is now being built on the Court to fall in line.
In other cases of discrimination or arbitrariness it is not optional for the Supreme Court whether to intervene or not. Article 13 itself lays down that anything in conflict with Part III of the Constitution shall be void.
The founding fathers have enjoined on the Supreme Court (Art.32) and the High Courts (Art. 226) to adjudicate on the same. Such adjudication necessarily involves a decision on whether a decision of the executive or of the legislature falls within the parameters of “reasonableness”. In view of the mandate of the Constitution, acting on the same cannot really be called judicial “activism”.
So what was the occasion for this sudden exhibition of petulance against the courts? The more so when the ruling party at the Centre itself had when in opposition lauded the apex court when their activism happened to be directed against Narendra Modi's government. (They have when now in power awarded a Padma Vibhushan to the Ex.-CJI, its architect.)
The PIL is being gleefully used by the Congress Party, to the great chagrin of Mulayam Singh and his supporters, on this and that alleged scandal, irregularity or corruption. Surely what is good for the goose cannot be anything different for the gander.