People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)


No. 28

July 11, 2010



Judiciary Once Again Oversteps Its Jurisdiction


K K Ragesh


THE order of a division bench of the Kerala High Court banning to hold public meetings beside public roads has sparked massive protests in the state. While banning public meetings by the roadside, the court further directed the police, public work department and local self-governments not to grant permission to hold such meetings and asked the police to remove the stages and equipments if such meetings are held by the roadside. It also directed the police to take legal action against any violation.




The order was passed on a writ petition contending that public meetings were being organised in a ground in front of the Aluva railway station in Eranakulam district. It was argued that roads were blocked and traffic was halted when meetings were held there and that such meetings were conducted without any permission of the authorities concerned. The petitioner further argued that holding public meetings by the roadside is an offence under the Indian Penal Code.

However, rather than considering the merit of the petition, the court used the opportunity to take over the function of the executive and thus transgressed the domain of legitimate judicial tasks entrusted to it. Under the pretext of ensuring “free flow of traffic on public roads and for the safety of the travelling public,” the court held that such meetings create road blockades and also detected that there was a possible danger to the lives of those assembled in the crowd because of vehicles being rashly driven! Also, the court was benevolent enough to suggest that the government could permit public meetings on holidays in the grounds of government controlled educational institutions or open grounds located away from public roads.

While passing such an order that encroaches upon the powers of the executive and to derive far-fetched conclusions, the court did not desire to hear the government side and sent no notice to the government. While arbitrarily issuing its order, the High Court did not hesitate to break the conventional ethos of separation of powers. The order of the court is thus nothing but the so-called judicial activism. The recent court order seems to be based on the belief that traffic congestion is caused by roadside public meetings. In fact, it is not a common factor. Holding small public meetings by the roadsides and near bus stops is very common in Kerala and hitherto such meetings have never created any traffic jam. There may be a few instances of public meetings causing road blockades, but each such case needs to be decided on its own merit. In fact, in the recent past, the courts have on extraneous grounds put restrictions on the fundamental right to freedom of assembly and freedom of speech and expression, enshrined in the constitution.   




The constitution of India guarantees all Indian citizens certain vital fundamental rights under article 19, like the freedom of speech and expression, freedom to assemble peacefully and without arms, to form associations or unions. Of this, freedom of assembly includes the freedom to assemble in public places, to take part in a meeting and express views without any government restrictions. The constitution itself clarifies that “the State shall not make any law which takes away or abridges the rights conferred by this Part (Part III of the Constitution which explains the fundamental rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

It is true that the constitution also allows the state to impose reasonable restrictions on the fundamental rights. But it also explains the concrete conditions in which such restrictions can be imposed. The constitution states that such restrictions can be imposed only in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign countries, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

But now a court, which is supposed to protect the fundamental rights of the citizens from any infringement due to state intervention, has surprisingly ordered a ban on public meetings by roadside!




Can it be considered reasonable? No! It is clear that the said court arrived at an illogical conclusion because of certain undemocratic notions. In this case, the court has sought to ban public meetings simply on petty excuses such as traffic jam, and a fictitious story about dangers to the lives of the assembled crowd because of rashly driven vehicles. It is thus an instance of judicial over-activism --- one more in a series of undemocratic judicial interpretations during the epoch of neo-liberalism.

Let us recall some cases. In the recent past, the Kerala High Court ordered a ban on bandhs and hartals in the state. In another instance, it sought to curtail the democratic rights of students in the university and college campuses. In all such cases, the court orders cited similar petty reasons and made illogical and subjective interpretations of the constitution. This is an unhealthy trend of the judiciary intervening and using the sword of a judicial review against whatever enactments are made for a social cause. This is a recent phenomenon of the courts getting infected with neo-liberal ideas and serving the interests of foreign and domestic monopoly capital, thus in effect undermining the spirit of whatever democratic principles are enshrined in India’s constitution. For instance, while considering the Coca Cola case, the court was more concerned with the commercial interests of this multinational company and not with the perilous harms it was causing to the common people’s health.

The Supreme Court, too, upheld the Kerala High Court's judgement that banned bandhs.

Outside Kerala too, instances of a similar nature have been witnessed in which judicial pronouncements betrayed a neo-liberal and pro-corporate orientation, as in the BALCO case. In case of Tamilnadu, the court even questioned the right of the workers to strike, in the context of the Tamilnadu government’s decision to dismiss 170,000 of its employees. In most of these pronouncements, the courts have been biased in favour of the neo-liberal interests, and against the workers’ rights, people’s democratic rights and their right to education and employment. The Supreme Court did not even hesitate to rule that even the laws placed in the ninth schedule for the protection of progressive enactments, with a vision of social justice, are subject to judicial review.

As said, this is a recent phenomenon. In the past, many eminent judges in the higher judiciary interpreted the constitutional provisions of equality and fundamental rights in the interest of the downtrodden. Judges like Justice V R Krishna Iyyer, Justice Chinnappa Reddy and Justice Bhagawati were among those who made such constitutional interpretations. But now many of the judicial proclamations have discarded this tradition and have been driven by neo-liberal perceptions. Some recent orders regarding the private unaided institutions of education are a consequence of this very kind of judicial assertion.




A close scrutiny of the recent judgements regarding education exposes the neo-liberal influences in the judiciary. Earlier, in the Mohini Jain case, a court had held that private managements could not collect fees in excess of the fees chargeable in government colleges for an equivalent course. The court observed that the right to education is a fundamental right under article 21 (right to live) of the constitution. The right to live includes the right to live decently, education is a means for decent living, and hence the court recognised the right to education as a fundamental right. In the Unnikrishnan case, however, another court did not accept the argument that imparting education is a fundamental right under the constitution; it only observed that education was never considered a trade, occupation or business in our country. The verdict of the 11-member constitution bench of the Supreme Court in the TMA Pai Foundations case was not only an advance towards the court-backed neo-liberal agenda in education; it was a total reversal of the past positions. While recognising the right to establish educational institutions as a fundamental right under article 19 (1) (g), the court made an astonishing U-turn and opined that education is an occupation or business. While the court in the Mohini Jain case was concerned with the needy students who are denied education due to their inability to pay the exorbitant fee, the Pai case verdict was eager to preserve the business interest of private investors in education.

During these neo-liberal times, now the courts are on the one hand eagerly safeguarding the corporate interests and on the other hand imposing restrictions on even the limited democratic rights guaranteed in the constitution by using the weapon of what has been called judicial activism. While doing so, courts never care to see how farmers are losing their fundamental right to live and are committing suicide due to the retrograde policies of the government. Never has the judiciary felt the need to display its activism and intervene to protect the farmers from bankruptcy. While dubbing education as a trade, the court was blind towards the agony of such students as are unable to pay the exorbitant fees and hence get deprived of education and decent living. These neo-liberal courts never bother about the job security of workers and their ruthless exploitation. They never intervened when lakhs of cottage and small scale industries closed and workers lost their livelihood. Instead, they show utmost zeal to deprive the workers of their right to strike. It is undeniable that courts in these neo-liberal times are interpreting the constitutional provisions in the interest of corporate houses, suppressing the limited democratic rights at a time the state is imposing anti-people policies. The Kerala High Court order banning the roadside public meetings is also a move to suppress the dissent against state policies.