People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
February 25, 2007
Judicial Activism or Tyranny?
K K Ragesh
THE judiciary, legislature and executive are three vital organs in the body of democracy. All the three components have their own detached but inter allied functions through the doctrine of separation of powers. Many of the recent judicial pronouncements give an impression that our democratic body is seriously affected with the abnormal enlargement of one organ- judiciary.
The self-styled judicial activism has been of late amounting to judicial tyranny. The Supreme Court recently ruled that even the laws placed under ninth schedule, which were enacted for the protection of progressive enactments with a vision of social justice, are also subject to judicial review. The Kerala High Court in its verdict has declared that all the crucial provisions in the Kerala Professional College’s Act are unconstitutional. The Professional College’s Act, passed unanimously by the state legislature is in fact an outcome of the vibrant and prolonged student agitations. It is to be noted that the same High Court a month earlier had banned organisational activities in college campuses and banned the set up of campus units of student organisations in educational institutions. Accepting all the arguments of the education traders and citing mechanical interpretation of the Constitution insensitive to its basic spirit, the division Bench of the Kerala High Court, through its verdict indeed ridicules the people’s authority in a democratic society. It may be because of the contempt laws and apprehensions on contempt proceedings that criticisms of court verdicts rarely take place.
The unhealthy trend in judiciary of intervening, armed with the sword of judicial review, in the enactments made with a social cause is a recent phenomenon. The courts inclined with neo-liberal ideas and serving the interests of foreign and domestic monopoly capital in effect undermine legislatures that reflect people’s concern. While considering the Coca Cola case in the Kerala High Court, the courts were eager about protecting commercial rights of the multi national company and not about the perilous health hazards on the common people. After the judgment in the professional colleges case, many allegations were levelled against the then Kerala High Court Chief Justice V K Bali that he had violated judicial ethics by accepting hospitality of the self-financing college managements. Evidences show that influences beyond the law fashioned the whole judgment of the division bench of the Kerala High Court while declaring all the crucial provisions of the Professional Colleges’ Act as unconstitutional. The values of judicial life adopted by the chief justices’ conference of India 1999 states ‘the behaviour and conduct of a judge must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done’.
SFI had lodged a complaint to the president of India, the chief justice of the Supreme Court and the Lok Sabha speaker against the former CJ of Kerala High Court- that the CJ had accepted the hospitality of an interested party in a highly sensitive case involving the government of Kerala and self-financing private managements, knowing fully well that he was transgressing the limits of judicial discretion and model code of conduct. SFI also submitted corroborative evidences including itinerary of Justice V K Bali, in connection with his visit to a private college programme, photographs which shows him being hosted by a private management at it’s guest house, copies of the details of the government guesthouse register which show that the VIP rooms were available during his visit, CDs with the visuals being telecast by a television channel of a pleasure trip in which the advocate who appeared for the private college managements was also present etc., to substantiate the allegation.
The judiciary, just like the executive and the legislative, is an expression of the will of the people, and is vested with powers for the people. When courts and corrupt judges are criticised, media sponsored propaganda gives an impression that the courts resemble holy cows. Essentially the fear of contempt proceedings prevents individuals from criticising the conduct of some judges. In response to the SFI’s complaint many eminent personalities including former Supreme Court judge Justice V R Krishna Iyer expressed serious concerns and former law minister Santhi Bhushan demanded a judicial enquiry as well. However certain people like Justice K T Thomas, former Supreme Court judge, who wants to maintain the status quo, has criticised SFI’s complaint saying that such criticisms will annihilate judicial credibility. He has also added that the same would amount to contempt of court. In his article in a vernacular daily he stated that contempt proceedings were not initiated because of the benevolence of the court and ridiculed the SFI.
The inconsistent approach of the courts towards contempt cases is visible in many judicial proceedings. The argument criticising and lodging complaint against the court amounts to contempt is unsubstantiated. It is the misconduct and corruption of some judges that taints the courts. A former chief justice of the Supreme Court had pointed out that 20 percent of judges are corrupt. But till date none of the corrupt judges, except the Delhi High Court judge Shamit Mukherjee, were ever convicted. In this context the observation of the former law minister and SC senior advocate Santi Bhushan that judicial corruption can be stopped only when some of the corrupt judges are imprisoned assumes further significance. While pointing out the misconduct and corruption of the judiciary, ludicrous arguments that public criticisms will weaken and harm the reputation of the judiciary are as ridiculous as that convicting thieves would increase theft. The argument that allegations are made only when the court verdicts are not in favour is erroneous. Suspicions were bound to be raised when the verdict itself was unexpected and unwarranted. The Coco Cola case verdict too was a controversial one. High Court’s ruling to ban campus units of student organisations in educational institutions has also invited many objections. Justice K T Thomas himself and all sections including the former judge V R Krishna Iyer have vehemently criticised the self-financing case verdict.
Many eminent personalities within the judiciary itself hold a different perspective and perception that in a democratic system people are supreme and all the state entities including judiciary are servants of people and hence people have every authority to criticise judges. Our judicial system is nurtured from the British system and in England judicial powers are vested with the crown. “Thus in a monarchy the judge really exercises the delegated functions of the king, and for this he requires dignity and majesty as a King must have, to get obedience from his subjects. The situation becomes totally different in a democracy in which it is the people, and not the king, who are supreme. Here the judges get authority delegated to them by the people, and not by a king. Hence in a democracy there is no need for judges to vindicate their authority or display majesty or pomp. Their authority will come from public confidence based on their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy and there is no need for them to display majesty and authority”. It is a fact that our judicial system still embraces the reminiscence of British aristocracy. In the neo-liberal era, all organs of the state ooze ruling class ideas and this is true for the judiciary as well. Unfortunately the filth of liberalisation like corruption is also affecting our judiciary. This is a fact accepted by some of the judges themselves. Hence it is high time that measures are taken for ensuring accountability and transparency in judiciary. Contempt laws should be streamlined to protect the right to freedom of speech and expression of every citizen, as enshrined in our Constitution. It is a consolation that the government decided to enact The Judges (Inquiry) Bill, 2006 for establishing the National Judicial Council to undertake preliminary investigation and enquire into allegations of misbehaviour or incapacity of a judge of the Supreme Court or of a High Court.