People's Democracy

Courts And Rights 

R Arun Kumar

UNTIL justice is blind to colour, until education is unaware of race, until opportunity is unconcerned with the colour of men's skins, emancipation will be a proclamation but not a fact." Lyndon Baines Johnson (former President of US)

The Kerala High Court has recently ruled “Provide them 250 kgs of food, 500 litres of water with 250 litres on spare, 12 hours rest and a shade to beat the heat everyday.” If the Court rules so well for the welfare of elephants, it is natural for the people to believe that as human beings they too would benefit from this benevolence. They hoped that the State-executive, legislature and judiciary together would work for the realisation of the ideals proclaimed in The Preamble of our Constitution which states, “We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: Justice, social, economic and political…Equality of status and of opportunity…” The indifference of the ruling classes to turn the proclamation into a fact is forcing the people to come out in protest against the existing inequities in the society. As the custodians of our Constitution it is the bounden duty of the courts to ensure that successive governments meet the ideals enshrined in it. It is for the courts to ensure that the justice delivered by them is ‘social, economic and political’. Is this happening?

In the era of neo-liberal globalisation the government is abdicating its social responsibilities in the name of fiscal prudence. Only popular mobilisations and movements are forcing it to at least legislate some positive provisions in favour of the poor and disadvantaged sections of the society. Many times the governments in power are trying to suppress protests with an iron hand. They are trying to impose many restrictions on the rights of the toiling sections of the society. The saddest part of the story is that Courts, that are looked upon as the protectors of the peoples’ rights are passing some adverse rulings. Let us look at some of the judicial orders to better understand the situation.

I Kerala High Court had banned the formation of units of the student organisations in the campuses.

II Recently the High Court of Himachal Pradesh imposed severe restrictions on the protests of the university students in Shimla. They have banned (i) all sorts of protests within 200 metres of the Vice-Chancellor’s office and the library, (ii) class-to-class campaigns and (iii) slogan shouting.

III The High Court of Rajasthan formed a committee to go through the collection of exorbitant fees in private unaided schools and this committee has concluded that many of the schools are in fact collecting exorbitant fees. Based on the observations of the committee the Court ruled for some control on the private schools vis-à-vis the fee that is collected. The managements of these schools challenged the ruling in the Supreme Court and the higher court has ruled in favour of the private managements striking down the High Court order.

IV The High Court of Andhra Pradesh has questioned the right of the political parties to organise dharnas and rasta rokos and opined that Rs fifty lakhs should be collected from the violators as fine.

Apart from these recent judgements quoted above there a many other judgements that have spoken against the peoples’ voice of protest. The one negating student union elections, the right to strike, banning bandhs, dharnas and processions are some other important examples. Can these not be construed as restrictions on the citizens right to freedom guaranteed by our Constitution under Article 19 (1) (a), (b) and (c)? The irony lies in the fact that this is happening when the majority of the people want to use their fundamental right to protest in their quest for ‘economic democracy’. In Article 51 (fundamental duties) our Constitution wants its citizens “to cherish and follow the noble ideals which inspired our national struggle for freedom”.  To fight against injustice and for rights and equality is what the freedom struggle has taught us.

On the question of the rights of few individuals that have an adverse impact on the majority of the population specifically the toiling sections, the Courts are coming in protection of those rights. Article 19 (1) (g), Article 15 (1) and 16 (2) are often quoted. Are not the qualifications in the subsequent clauses in these articles equally valid? Why are these not considered?  

BAFFLING DISSIMILARITIES  

Some of the judgements are baffling for their dissimilarities in a like situation. The Court has directed that the striking doctors in AIIMS who are protesting against the provision of reservations of OBCs to be paid their wages while the same is denied to workers who strike work against the anti-worker policies of the government. Auto drivers should collect fare according to the meter fixed by the government authorities but private educational institutions should not be directed to collect fees according to the rates decided by the government! The latter is infringement on the rights of the individual while the former is not! Don’t these give an impression of bias towards a particular section or class? Just as Marx has said “…your jurisprudence is but the will of your class (ruling class) made into a law for all, a will whose essential character and direction are determined by the economical conditions of existence of your class”. The judicial system should ensure that our system is not like what Judge Sturgess had once said: “Justice is open to everyone in the same way as the Ritz Hotel”.

In the IR Coelho Vs state of Tamilnadu case (challenging the ninth schedule in the Constitution) the Court has commented “To legislatively override entire Part III of the constitution by invoking Article 31B would not only make the Fundamental Rights overridden by Directive Principles…” Any attempts by the State to provide some support to the disadvantaged sections in the society are looked at as attempts to ‘make the Fundamental Rights overridden by Directive Principles’. It is true that Fundamental Rights are legally enforceable while the law does not guarantee the implementation of the Directive Principles. This should not lead us to the conclusion that the latter are mere scriptures. Ambedkar had replied to the various points that were raised in the debates in the Constitution Assembly on this issue in the following manner: “While we have established political democracy, it is also the desire that we should lay down as our ideal economic democracy… In my judgment, the directive principles have a great value, for they lay down that our ideal is economic democracy. Because we did not want merely a parliamentary form of Government to be instituted through the various mechanisms provided in the Constitution, without any direction as to what our economic ideal, as to what our social order ought to be, we deliberately included the Directive Principles in our Constitution… We have used it (the word ‘strive’) because our intention is even when there are circumstances which prevent the Government, or which stand in the way of the Government giving effect to these Directive Principles, they shall, even under hard and unpropitious circumstances, always strive in the fulfilment of these Directives… Otherwise, it would be open for any Government to say that the circumstances are so bad, that the finances are so inadequate that we cannot even make an effort in the direction in which the Constitution asks us to go…They are really Instruments of Instructions to the Executive and the Legislatures as to how they should exercise their powers.”    

If a government is forced to enact a legislation to benefit the Scheduled Castes, Scheduled Tribes, Other Backward Classes and minorities they are unfortunately termed as a result of ‘vote-bank politics,’ surprisingly even by the Court. Nobody can understand what wrong it is if a positive legislation benefiting the downtrodden sections in the society fetches some votes to the ruling party! On the other hand if the governments fail in this objective there is every chance of the ruling party losing its power in the elections. That is the reason why there was a change in government six times out of the fourteen times elections were held to the Parliament. If a government promises and fails to deliver the people have a choice to vote it out but what happens if the Courts rule against the interests of the people in spite of legislations to the affect?  

ACCOUNTABILITY NEEDED  

One day a judge rules that Muslims are not a minority in a state and the very next day of course a larger Bench stays the ruling. The ruling of the single judge created much confusion and might or might not have served its ‘purpose.’ This ruling became all the more important because of its timing-during the sensitive and important Uttar Pradesh assembly elections. Apart from all this it also brings once again the question of accountability to the fore. Should not the judges be made accountable too?

A Judge should not be like “a law student who marks his own papers” (H.L. Mencken). They should be accountable to the society at large and as they too just like the other organs of democracy derive power from the people. A section of the judiciary is stating that criticism of the judiciary weakens the institution and thus ‘lay men’ should not indulge in it and contempt proceedings are initiated. Unfortunately some of the judges forget the same logic when they unnecessarily criticise other organs of our democracy. Is it not a fact that when we point a finger at someone, three fingers point towards us? As Ambedkar has said it should be remembered that after all even a “Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have.”

There are many adverse comments made by judiciary against the ‘work culture’ of our politicians in the legislatures and the employee/worker in the public sector units. One such comment is that ‘where would the legislatures find time to legislate when half of their time is consumed on walk-outs’. The comments made against the public sector employees are umpteen and need no mention. This may immediately satisfy the middle-class urges of some but they should be located in their proper context. One a democratic form of protest in the parliamentary system is degraded. Two apprehensions are cast on the entire public sector and indirectly strengthening the argument of private sector that they are the best. Here we have to look at the work of the courts too. There are more than 2, 54,92,578 cases pending in the courts, some of the accused in the criminal cases serving more years in prisons than their probable sentences if they are found guilty. The reasons for this might be the absence of sufficient number of judges but introspection should be made about the role of judges in repeatedly adjourning the cases and thus prolonging the trial period.

Another point to be mentioned here is the issue of corruption. It is a fact that corruption is rampant in the society and has become a malice affecting all the institutions in the society. This fact is acknowledged by many former judges and the present Chief Justice stated that even judiciary is not free from its influence though limited to an extent. Transparency International in a survey has noted that in a scale of 10, people rate the corruption in judiciary in our country as 4.8 and among politicians as 4.7 (the lower the scale the higher the incidence of corruption). When we sit to judge upon others we too should be ready to be judged by others, as nobody is infallible. In democracy it is people who are supreme and all the institutions should be accountable to the ultimate sovereignty of the people. It is high time that accountability of the judiciary is ensured-to get rid of such inadequacies and increase its efficiency.

We should always remember the warning of Ambedkar “Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship”. It is time for us to shed our blind ‘Bhakti’ towards judiciary and critically review its’ functioning.  This is to be undertaken in the right spirit and should lead to the strengthening of our democratic institutions of which judiciary in undoubtedly an important pillar. The people should not get the impression that ‘Corn Can't Expect Justice From A Court Composed Of Chickens’ (A famous African Proverb). If this is not done immediately people will be forced to read the prediction of Mayakovsky in his ‘Ode to Judges’- a poem he wrote criticising the judges of Peru. “Judges are a bane for dances and birds, / for me, for you, for Peru”.