VINOD KUMAR SONKAR, most respectfully, but in a thought-provoking way, presents some suggestions before Indian judiciary, on whom citizens pin so much hope.
Law without justice is like an egg without yolk, so says Justice V.R. Krishna Ayer
Judiciary is one of the three pillars of the state under the democratic constitution of India . The function of judiciary is to interpret the law and to impart justice. But if “We the People of India” make an audit of the judiciary since 1950 till the date, we find big question marks on the institutional structure of judiciary, modus operandi of dispensation of justice, the image of judiciary in the mind of a common man and the character of judiciary. There has been considerable number of occasions where the judiciary has transgressed to the spheres of legislature and the executive either in the garb of judicial review or in the name of judicial activism or the independence of judiciary and so on.
This is a fact of common knowledge that the framers of the Constitution of India have devised a very lucid scheme of the distribution of powers and functions amongst the three organs of the state i.e. legislature, executive and judiciary for the governance of the affair s of the state, then the question arises that if the constitutional scheme as to the distribution of powers and functions is so lucid, why there is so much confusion, apprehension and the frequent transgression by the judiciary into the constitutional sphere of the other two organs of the state?
Under the devised scheme of the constitution as to the distribution of powers and functions, the legislature which is the elected representative of the people is bestowed with power and duty to enact laws (including the welfare legislations) and the legislature is periodically accountable to the people whom it represents at the level of parliament or the state legislative assemblies as the case may be. Next organ of the state is executive, which has been cast upon the duty and power to execute the law as enacted by the legislature. The executive is accountable to the legislature. Finally comes the judiciary, which has been bestowed with the power and duty of interpreting the law by virtue of Article 141 of the constitution and also scrutinising the constitutionality and legality of a law by virtue of Article 32&226 under the power of judicial review. There is also an additional provision under Article 50 of the constitution, which seeks to insure the separation of judiciary from the executive (independence of judiciary).
FALLACY OF JUDICIAL ACTIVISM
The architects of the constitution of India , of course have incorporated Montasque’s doctrine of separation of power and tried to regulate the possible overlapping of powers and functions of different organ of the state by virtue of the principle of checks and balances. The constitution nowhere says that if one organ of the state fails to perform its legal or constitutional duty, any other organ of the state will assume it and would dictate the former. In the recent days at several occasions the judiciary has assumed the role of executive in the name of judicial activism on the excuse that the executive has failed to perform its legal duties. Even if we assume that the executive has failed to perform its legal duties, does the constitution empower the judiciary to assume the role of executive and get the things done what the executive has failed to do? Is the judiciary constitutionally empowered to step into the shoes of executive? Even the judiciary has gone to the extent of passing orders to remove the garbage piled up on the road side which is the sole municipal function of the executive. Judiciary has also transgressed into the domain of legislature and indirectly made the laws in the course of interpretation of law while exercising the power of judicial review.
Now a very pertinent question arises whether the judicial activism is an unfettered phenomenon? In fact, whatever is being done today in the name of judicial activism is not judicial activism rather it is judicial despotism as the judiciary has acquired an unassigned power to dictate other organs of the state in the name of judicial activism.
ILLUSION OF JUSTICE
Article 141 of the constitution says, “The law declared by the Supreme Court shall be binding on all court within the territory of India ”. It is significant to note that Article 141 nowhere says that the law declared by the Supreme Court is binding either on legislature or judiciary or on both. It is true to say, that the Supreme Court is the final authority to interpret the law. But it does not imply whatever is pronounced by the hon’ble Supreme Court is the words of Prophet or the Gospel Truth. The significance of the very existence of the apex court is that the Supreme Court is the point where litigation ends. The Supreme Court is the final authority to interpret what the law is but not the final authority to pronounce what the justice is because every pronouncement of the hon’ble Supreme Court does not necessarily cause justice. In recent times there have been a series of apex court’s decision whereby lot of injustice has been caused to the poor, downtrodden and marginalized sections of the society. The pronouncements in these judgments show that the apex judiciary is here to protect the interests of the privileged and ruling classes. In Marxist terminology the hon’ble Supreme Court seems to be a bourgeois institution, which serves the interest of haves and not of have-nots. In Narmada Dam case the so-called mega development project displaced millions of poor tribals. Neither they have been adequately compensated nor properly rehabilitated. Here our apex judiciary has sided with ones who have displaced the, “little people of India ” and put its stamp of affirmation on the decision of the government.
Once upon a time the first Prime Minister of India Pt. Jawahar Lal Nehru called the Public Sector Units to be the “Temples of development in modern India ”. But with the turn of the century, the government has sold these temples of development to multinational companies one by one and thereby reinforced the hands of multinational companies in India . Unfortunately, our judiciary has been a part of this unfortunate phenomenon. In Balco disinvestments case also the apex judiciary has failed to protect the interests of thousands of workers engaged in the establishment. The apex judiciary has given its affirmative approval to the policy of disinvestments and privatisation without looking into the future repercussions of the said policy.
Be it the Balco disinvestments case, banning of pollution causing industries in Delhi or the case of demolition of unauthorised constructions in Delhi, it seems that whatever the government could not do directly on account of public resentment, the government gets it done through the back channel of judiciary as there is hardly any possibilities of any pandemonium against the decisions of the apex judiciary since the judiciary has a power to punish for its contempt. At some points of time it seems that the apex judiciary is in active connivance with legislature and executive in the economic phenomenon whereby the rich are getting richer and the poor are getting poorer. Does it not amount to an act of defeating the sacrosanct object of economic justice as enshrined in the preamble of the constitution?
When the doctors of AIIMS go on strike on the issue of reservation, the hon’ble Supreme Court holds that “let the doctors be reinstated with back wages”. But on the other hand, when the poor workers of an industrial establishment (govt. or Pvt.) go on strike their strike is declared unconstitutional, illegal and it is observed that they do not have any moral, statutory or fundamental right to strike (T.R. Rangarajan V State of Tamil Nadu) their wages are denied and their termination is held justified. It reflects the class and caste character of our apex judiciary. It is stated with utmost respect of judiciary the said decision was a decision per in curium i.e. decision pronounced in ignorance of law or deliberately bypassing of the law. The judgement was pronounced without taking into account Article 19 of the constitution and the labour laws.
A poor man working on ad hoc basis or as a daily wager for years and years, devotes a valuable period of his life in the service of an institution/ industrial establishment in the hope that the day would come when he would be made permanent. Suddenly, one day he is fired from the job. When the matter comes to the apex court, the hon’ble Supreme Court delivers its judgement saying that a person appointed on ad hoc basis or on daily wages in public or private sector is not entitled to be made permanent. Now the person is rendered jobless and his family is rendered helpless. Hon’ble Supreme Court does not have any answer for his joblessness. No arrangement for his alternative employment and no provision as to how his family would feed its belly. But the judiciary can do so because the hon’ble judges have job security under the constitution. A judge can be removed only by way of impeachment under Article 124(4) of the constitution, which is an extremely cumbersome procedure. During last 57 years no Lordship has ever been impeached and removed from the post (despite the fact that the former Chief Justice of India S.P. Bharucha himself has admitted that 20% of the judges in the judiciary are corrupt). But the judges are very well empowered to take away the livelihood of subaltern people of India .
Recently, during the proceedings of a case the hon’ble Supreme Court pronounced its obiter dicta that the corrupt officials should be hanged from a lamp post .Does this pronouncement apply to the corrupt judges as well? It is interesting to note that in the year 2006 in China 292 judges were found to have “abused power for their personal interests” and out of 292 judges 109 judges were awarded “criminal penalty”(The Hindu, 14 March 2007) . But in India awarding criminal penalty to a judge is utopian dream, even fair criticism of a judicial decision is not tolerable to our judiciary.
In order to give effect to the policy of “Liberalisation” the government (be it UPA or NDA) is determined to make labour law reforms. But in the garb of labour law reforms, the government is trying to make amendments in the provisions of the Contract Law and Industrial Dispute Act which protect the interests of the workers, and thereby giving power to the private companies to dictate the terms and conditions of employments by resorting to the policy of “Hire and Fire”. It seems that the govt. is determined to stroke hammer on the future of millions of poor workers. Impliedly, it is also a vicious effort to dilute the entire labour movement in the country. It is interesting to note that all this is done by the government with the active support of our hon’ble judiciary.
(to be continued)