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India’s hyperactive judiciary

Judges have become middle class heroes in India, while politicians struggle to retain their credibility.  By Kunal Majumder

On 2 February 2012, hours before lawyers and judges met on the Supreme Court (SC) of India lawn to bid Justice AK Ganguly farewell, the retiring judge and his colleague Justice GS Singhvi dropped a bombshell on the government. Ganguly and Singhvi, who were part of the bench hearing the $15.4 billion telecom scam case, cancelled all the 123 telecom licenses allotted by the government.

The decision sent the Manmohan Singh government into a tizzy. A lower court was then and still is hearing the case. Former telecom minister A Raja, who is now in jail, continues to claim there was no corruption in allotting telecom spectrums. The government has all along maintained it was a policy decision. But Ganguly and Singhvi changed it all. Without even waiting for the trial to be over, the judges held Raja and the department of telecom guilty of “virtually gifting away an important national asset at throwaway prices”.

That afternoon, as senior minister Kapil Sibal, also in charge for telecom, struggled to defend the government in front of the press, Ganguly gave his farewell speech. “This is the end of my innings as a judge. I don’t know how well I played it, but I played it with a straight bat,” he said in the presence of Chief Justice SH Kapadia, Attorney General GE Vahanvati and other senior legal dignitaries. Vahanvati, who represents the government which has often been at the receiving end of Ganguly’s judgments, paid his tribute by calling him a “tough judge” for whom fighting corruption has been very dear. Ganguly is not the only ‘tough judge’ in the Supreme Court of India who have made the lives of the executive uncomfortable with sharp questions and even sharper judgments. Markandey Katju who retired in September 2011 was another of the same tribe. Lawyers appearing in his court were expected to pass, what Supreme Court lawyer Rajeev Dhavan calls, the ‘Katju test’. “Lawyers arguing before him are simply portrayed as inefficient, incompetent, unknowledgeable; and in some cases not worthy to practice,” Dhavan wrote in India Today in December 2010. It was not just the way Katju treated lawyers that raised eyebrows, his comments in the court, called Obiter Dictum in legalese, created more controversies and often made him a topic of animated discussions in television studios. One such comment came in December 2010. While hearing a case from Uttar Pradesh where a judge from a lower court had erred, he called the whole of judiciary in his home state Uttar Pradesh corrupt. The lawyers of Allahabad High Court hailed the remark but many questioned if Katju had indeed crossed the line by making libelous remarks against sitting judges. He was unrepentant. A formal request from the high court to SC to expunge these remarks was stuck down and he further chastised them. Even after retiring as a judge, Katju continued to court controversy in his new role as the chairman of the Press Council of India through his blunt remarks against the way the Indian press functions.

Judicial activism is not new to India, points out senior journalist Ashok Malik. In the 1990s, the judges of Supreme Court forced many policy matters down an unwilling government’s throat. One of the significant examples of judicial activism is the manner in which CNG was imposed on commercial vehicles in Delhi. The government was dilly-dallying the introduction of the environment friendly fuel for commercial vehicles in the national capital. The SC took up the matter and pushed the change through. Justice Kuldeep Singh, who passed the judgment, came to be known as the ‘green judge’ as he would pick up environment cases and raise important questions about government’s actions and inactions. Even simple issues like seatbelts in vehicles couldn’t be implemented by the government and the court had to intervene and make seatbelts compulsory. “However it is no more the same now,” says Malik. In a public lecture, the current Chief Justice SH Kapadia in March 2011 acknowledged that judges impose their “values”, “likes” and “dislikes” on the society. “The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to society,” he said. Since then the number of cases of Obiter Dictum has certainly gone down but the clash between the judiciary and the executive continues. In the same month, the SC quashed the appointment of the Chief Vigilance Commissioner PJ Thomas due to pending corruption cases against him. In January 2012, the court struck down the government’s decision to impose $2.2 billion tax on telecom giant Vodafone. Various decisions of the green bench of SC which looks into environmental cases have often been at variance with the government’s view. The prosecution in the 2G telecom scam case itself gained pace after the SC took it over and started directly supervising the Central Bureau of Investigation.

There has been growing clamour about the accountability of judges, especially from the elected representatives. “They behave like Gods”, “They are not responsible for any of their actions”, “What about judicial corruption” – MPs and ministers are heard complaining in hushed voices. The government has been trying to bring in the judicial accountability bill for quite some time now. Selection of judges to Indian Supreme Court is perhaps one of the non-transparent processes in the country. And the executive is quite keen to change that.

Even as the Parliament prepares to debate the bill to control judiciary, the question arises, why are we seeing so many cases of conflict between the executive and judiciary? The answer perhaps lies in the weakening credibility of the political class. It is not just the judiciary; even civil society has been openly clashing with politicians and even questioning the authority of Parliament and the elected government. Judges like Katju and Ganguly and civil society mascots like Anna Hazare have become middle class heroes while politicians struggle to retain their credibility as the true representatives of the people of India.

Published in The Friday Times:


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