L A W  &  J U S T I C E

Judiciary and the Political Class
Joginder Singh Toor

ON 8th of April, 2007, the Indians saw, the top elite of the two wings of the State face to face. The executive and the Judiciary at  a conference of chief ministers  and chief justices of the state high courts, also the Prime Minister, Dr. Manmohan Singh and the Chief Justice of India Justice K.G.Balakrishnan were at daggers drawn. The issue was the jurisdiction of each wing, the executive and the judiciary.

Dr Manmohan Singh mildly conveyed executive’s strong feelings that the judiciary was tending to over reach. “There is a thin line between judicial activism and judicial over reach and that each wing of the State should recognize, must respect the roles and functions ascribed to the other organ,” said the Prime Minister. Conceding that the judiciary had inherent power to issue mandamus directing the state authority to do an act or perform a duty which he is legally supposed to perform but substituting the mandamus by take-over of functions of the other organ became a case of over reach.

Justice K.G.Balakrishnan’s re-assertion of judiciary’s powers to review every legislation, to interfere in executive’s waywardness, to correct every arbitrary order or action; to take note of every failure of the State in performance of its executive functions; short of drawing straight lines suggested agreeable methods where things could be mutually sorted out.

The agenda before the Conference was to find ways to dispose of about 25 million cases pending in various courts of India.

Interestingly the agenda was not the reason behind the growing number of cases. Nor was there on the agenda the want of effort to implement Article 43, “to secure by suitable legislation or economic organization or in any other way, to all workers, agricultural industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of  leisure and social and cultural opportunities”.

Nor as required in Articles 39 and 41, was the will to secure right to work or education for all citizens, nor adequate means of livelihood nor “the ownership and control of material resources to be distributed as best to sub scene the common good or the reasons as to why  “the economic system” supposed “not to result in the concentration of wealth and means of production to the common detriment” it all has not happened.

Neither was any debate as to the increasing number of criminal cases, already two third of 25 million cases.

The Chief Justice of India citing Dr. Cyrus Dass that justice was a “Consumer Product and that it must withstand the market scrutiny.” It was left to the people to judge if it could withstand the scrutiny.

It certainly does not withstand the test in one angle but may with variation of thought meet from the other angle. Hundreds of thousands of accused are languishing in jails waiting trial and if convicted waiting decision of appeals. Complainants are waiting criminals to be tried and punished. Equal number not being brought to book much less arrested or tried for reasons being in power, control on economic sources.

On the other side the reversal of economic policies 1991 onwards, opening the country to unabashed market, disbanding huge public sector employing 71% of the workers in organized sector, has got interpretation of from the judiciary in consonance with the policy, may be it is BALCO or any other policy. The Justice Consumer market in this sector might have been happy, with one or the other pronounce merit with varied interpretation promoting the globalization aspect, and opening the market to multinationals.

After all we have around 4000 honourable Judges in 21 High Courts to interpret the Constitution besides the Supreme Court. As observed by Dicey, the laws are framed in general terms but are interpreted by persons who came from different walks of life, different religious leanings, different environment and thought process. The contributory factor in India is the lack  of guidelines in judicial selection, want of scrutiny in the names proposed in a public forum as in the U.S.A.

There never has been an open discussion on such high level Conferences on the concern once expressed by late Justice R.P.Sethi retired Supreme Court Judge that the preamble of the constitution is the most ignored part, the objects of the preamble are being diluted without amending the constitution. The judicial philosophy of the preamble says Justice K.G.Balakrishnan “gives precedence to economic and social justice over political justice”. But where do the words ‘Social’ ‘secular’ stands in precedence have not been touched.

By for the issues need an open debate to determine the judicial philosophy enshrined in the preamble and the constraints of jurisdictional limits. The Constitution having provided a touch stone to the judiciary, the executive cannot claim a ‘touch me not’ status and or the touch one, I want you to touch” at the same time the judiciary not to intervene without applying the touchstone that too on the objects identified in the core of the Constitution.

[jogindersingh_toor@yahoo.com]

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