Monday, 16 April 2012

PROTECTOR OF RIGHTS - Governments should not seek to restrain the judiciary Commentarao: S.L. Rao


- Governments should not seek to restrain the judiciary
Commentarao: S.L. Rao
Chafing at the supervision
Government functionaries question the right of the Supreme Court to lay down orders that, in the government's view, intrude on the government's right to make policy. Legislation is proposed for keeping courts out of policy even when the policy is based on falsehoods or leads to exploitative consequences. Until now, the government's and the public's obedience of the judiciary's orders have distinguished our democracy from anarchy.
The executive can refuse the enforcement of the orders of the courts. Courts would cite the government for contempt. The punishment for contempt has to be enforced by the executive. It could refuse. This has not happened so far, though the executive is often tardy in execution. Obeying judicial orders ensures rule of law. Courts derive their sanctity from the obedience to their orders. Disobedience could lead to a constitutional crisis. If the government disobeys court orders, then the common man is more likely to refute the supremacy of the courts. We will get into an anarchic situation. Of course, incorrect orders are liable to be challenged, and sometimes even undone, by subsequent legislation. But sheer disobedience is unacceptable in our legal system.
This applies also to state high courts, the lower level judiciary and statutory bodies like the chief election commissioner and quasi-judicial bodies like the independent regulatory commissions.
When a government is one of the contending parties before the court, the government accepts its role as a party to a resolution of the dispute by the court. Consequently it agrees to implement the court's order — or appeals against it to a higher court. There is a statute prescribing the procedure for execution of decrees of courts in case of non-compliance. Contempt is not the only remedy.
When a proposed step being taken by the government might violate one of the fundamental rights of a citizen, a high court and the Supreme Court can entertain petitions against it, or even consider it on its own. If satisfied that the the government action requires correction, the court would issue writs and decrees against the government concerned. Again, by virtue of accepting the role of party to the litigation, a government is precluded from going back later and saying that it does not accept the responsibility of implementing the Court's decision.
Article 13 (2) of the Constitution provides that the State shall not take away or abridge the rights conferred by the fundamental rights and any law made in contravention shall to that extent be void. Article 32 provides that the Supreme Court shall have power to issue directions or orders or writs, for the enforcement of any of the rights conferred by this part. Article 141 makes Supreme Court orders binding on all courts. Article 226 gives similar powers to the high courts though the two are mutually exclusive, except on appeal to the Supreme Court. Case law has clarified beyond doubt that "any law" referred to in Article 13(2) includes laws passed by authorized agencies frompanchayats upwards as also all administrative actions of all authorities (the State) which are contrary to the fundamental rights guaranteed by the Constitution.
It is clear that the courts' orders have to be necessarily implemented by government(s) and an express provision is not needed. Examples: B.S. Yedyurappa in 2012 stepped down when he was charged by the lokayukta court. T.T. Krishnamachari in 1955 stepped down as finance minister when the Chagla commission indicted him in the Mundra inquiry. Indira Gandhi in 1975 did not step down after the Allahabad High Court found her guilty of using a government servant in her election. She declared the Emergency and two years later, the people rejected her by an overwhelming majority.
During the Uttar Pradesh elections, a government-judiciary confrontation with the cabinet ministers, Salman Khurshid and Beni Prasad Verma, was imminent when they challenged the CEC's orders to withdraw their statements on reservations for Muslims and president's rule during their election campaigns. They ultimately apologized.
However, quasi-judicial bodies, like independent regulatory commissions, have not enjoyed the same respect, especially from state governments. For example, almost every state government has violated electricity commission orders. But the commissions themselves have been subservient to governments and have issued orders that are compliant to their wishes. If judicial bodies have to enjoy respect they must behave with fairness and dignity. Some independent regulatory commissions have not done so.
This is usually owing to the lack of proper selection by biased selection committees packed with government servants or those dependent on them. They have usually selected only retired and compliant government servants.
It is necessary to lay down principles of accountability for these quasi-judicial bodies. Regulators (as is the case with subordinate judiciary) could report to the higher judiciary for discipline, timeliness and behaviour. When they do not follow laid down rules they can then be pulled up, unlike at present.
One reason for people being reluctant to face courts is the enormous delays in deciding cases, and the peculiarity of indefinite "judicial custody" in jail. The judiciary must prevent this. Judicial custody, even in the most heinous cases, should be for strictly limited periods, after which the investigating authority must not be given more time for investigation while the accused is kept in custody. We must have the judiciary examine the frequent adjournments that are granted in almost every case, and that drag the cases on for long periods. Governments as litigants drag cases by always going in appeal. When governments do not want a judicial decision, they find ways to drag the trials — like the 10 to 20 year old riots trials in Delhi and Gujarat.
Also, judgments should be implemented without much delay. This is especially so in the case of terrorist cases, as with the convict in the murder of Beant Singh, the shootout in Parliament, with the 26/11 Mumbai killings, with the killers of Rajiv Gandhi from the Liberation Tigers of Tamil Eelam, among others. The delay in their execution as per sentence is on political grounds and should not have happened.
There are many failings in our judicial system and they must be reformed. But it is the fairest system we have and acts as a check on the unbridled powers of the executive. While reforming the judiciary and its processes we must not damage its independence.
The United Progressive Alliance is now complaining of interference by the higher courts in policy matters — for example, the court's directive to auction telecommunications licences. The judgment was a result of the huge losses to the nation caused by using other methods earlier. Such incidents will recur, because governments tend to take decisions on allocations of national resources (land or natural resources) in a way that is opaque and of benefit to the recipient at the cost of the nation.
The judicial accountability bill passed by the Lok Sabha seeks to prevent 'unwarranted' oral comments by judges in open court during trial that reflect on any institution, official or other government bodies. By not specifying who will decide that such comments are unwarranted, the bill gives censorship powers to the executive over the judiciary.
The government (represented by the bureaucracy and the political class) is chafing at the fact that the judiciary oversees matters. It is yet unwilling to disobey judicial orders openly but would like to restrain judges from preventing government officials from taking decisions that are not fair, transparent or in the interests of the nation.
With the possibility of a next government composed of regional parties, the nation will see further attempts to restrain the judiciary. In a constitutional democracy, the judiciary is the salutary protector of the rights of citizens from abuse and violation by a despotic State. Shackling the protector must be fought.
The author is former director general, National Council for Applied Economic Research