Rethinking About Indian Judiciary-II

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 strike 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.
In the sealing and demolition of unauthorised construction case the future of millions of people in Delhi has been sealed by the judiciary without appreciating the fact that judiciary had also played an active role indirectly in shielding unauthorised constructions. Whenever any public-spirited person moves the court against any unauthorised construction this was the judiciary only which had granted injunctions against the demolition orders of such unauthorised constructions. In fact, the judiciary, in recent days, has undermined its own dignity by delivering a series of anti-people decisions. The apex judiciary should review those decisions; it would be in the interest of the judiciary itself, as it would enhance the dignity of judiciary in the eyes of a common man, and it would also be helpful in reposing the trust of common man that has got diluted in recent times. Now let us take up the issue of power of judicial review as incorporated U/A 32&226 of the constitution. By exercising the power of judicial review the Supreme Court and High Courts have been empowered to decide the legality and constitutional validity of any enactment, part of legislation, ordinance, bye-laws or rules etc. but some significant questions crop up in the mind of a law man: (1) what is the extent of the power of judicial review? (2) Is the power of judicial review blanket, unlimited and unfettered? (3) Can any and every piece of legislation (including the welfare legislation put under IXth schedule) be scrutinised and struck down by the judiciary in the name of judicial review? To the best of his legal learning the present writer feels perhaps there is nothing like Absolute Power in the Constitution of India. Admittedly, it is true to say that IX Schedule of the Constitution is not a sacred cow immune from the power of judicial review. But there have to be certain norms and parameters as to the exercise of the power of judicial review.  IXth schedule of the Constitution has been created to protect the welfare legislations against any effort of judicial review. Creating IXth schedule and putting welfare legislations into it is not a one time affair. Whenever the legislature feels to cater to the needs and aspirations of the downtrodden and marginalized sections of the society, it can enact laws with this regards and may put it in the IXth schedule of the constitution. But every time the judiciary is not expected to peep into IXth schedule and to scrutinised the piece of legislation put into it. Every time the judiciary is not expected to raise question mark on the intention of the legislature. In fact there is nothing like blanket or absolute power in the constitution. Sometimes, the apex judiciary arbitrarily decides the extent of reservation saying that there can be no reservation above 50 % (Indira Sahni’s case). The hon’ble Supreme Court arbitrarily fixes the upper limit of reservation without telling where the upper limit of reservation is prescribed in the constitution or wherefrom the apex judiciary has derived this inference that there can be no reservation above 50%.  Let me make it very clear that this is none of the business of the judiciary to decide the limit of the reservation. What should be the extent of reservation is a policy matter that is the exclusive prerogative and domain of the legislature. Since the legislature is the elected representative of the people, they do represent the will and aspirations of the people, they win the people’s confidence, hence, they can feel the pulse of the masses better than any other institution including judiciary.   Only the legislators know the needs and aspirations of the people. If the elected representatives do not cater to the needs and aspirations of the people, the people have the power of ballot to dethrone them. Constitutionally speaking, judges are neither the elected representatives of the people nor they win the people’s confidence in any manner whatsoever.  They are either appointed on political considerations or elevated on the basis of seniority. Hence judiciary is nobody to step into the shoes of legislature. In the recent case (M. Nagarajan V Union of India) the apex judiciary has arbitrarily extended the concept of “Creamy Layer” to the case of Scheduled Castes and Scheduled Tribes, which is absolutely unwarranted and not permissible under any provision whatsoever of the constitution of India. The concept of Creamy Layer is not something, which can be extended and applied blindly and indiscriminately as and when the judiciary wishes to do so. It is a blatant abuse of the power of judicial review. The power of judicial review is also not an absolute power. Let the scope of judicial review be defined clearly for all times to come so that any unnecessary confrontation between legislature and judiciary may be avoided in future.    Let us talk something about the democratic decentralisation. Hon’ble Supreme Court teaches the lesson of democratic decentralisation to other organs of the state, but whenever the question relating to decentralisation and democratisation of the apex judiciary itself crops up, when somebody talks about setting up of division benches of the apex court (at least 4 division benches in North, South, East, and West zones of the country) so that fighting litigation in the Supreme Court may become a cheaper, affordable and expedient affair and justice may become easily accessible for a common man  hailing from farthest parts of the country, Hon’ble apex court argues that multi-furcating the apex judiciary is neither feasible nor permissible under the constitution. But an ordinary student of law knows that making simple amendment in the relevant provisions of the constitution can very well do it. Judiciary also keeps on teaching the Principle of Natural Justice i.e. nemo judex in causa sua (no one can be judge in his own cause). Let us examine the judicial practice of the same. Whenever an allegation of corruption, incapacity or misbehaviour is levelled against a judge, the matter is enquired into and investigated by none else but by the judiciary itself. Judiciary takes the cognisance of its own contempt and punishes the person committing the contempt.  The judiciary itself decides its own jurisdiction in various matters. None else but the judiciary itself also decides what would be the facilities, infrastructure and salaries for judges.
POWER OF CONTEMPT OF COURT
Now let us examine the issue of the power of contempt of court available with the judiciary under Articles 129,142(2) and 215 of the constitution of India. The scope of exercising the power of contempt of court is not clearly defined in the constitution. It seems that there is a considerable degree of crisis of identity with our judiciary. Even a fair comment is considered to be contempt of court. At a recent occasion when the Additional Solicitor General of India while arguing on Forest Bill made a fair comment that in various cases the Hon’ble Supreme Court has delivered judgements in contravention of statutory laws. The apex judiciary reacted in highly undesirable and sarcastic manner saying that the comment of the Additional Solicitor General amounts to contempt of court, not only the contempt of court but the “Blasphemy”. It is to be kindly noted that the word “Blasphemy” is used in religious context. The apex court threatened the Add. Solicitor General to face the penal consequences as if the judges were the virtual Lords incarnated from the heaven.On the other hand a few years back in U.K there was a cartoon published in The Times. The cartoon was of five judges of House of Lords, upside down and just below the cartoon it was written “five old fools have done it again”. Coincidently, India’s eminent lawyer and jurist Fali S.Nariman happened to visit London, when he met one of those five judges and asked as to why the judiciary did not take any cognizance against the said piece of publication (as it was a blatant contempt of court in his view), the said judge replied that “look Mr. Nariman there was nothing like contempt of court in the said piece of publication. What was written in the said cartoon: Five Old Fools Have Done it Again.  Five, we were five, hence, no contempt. Old, of course we are old hence, again no contempt. Fools, we are fools in the opinion of the cartoonist, and mind the cartoonist is free to hold his opinion .Look Mr. Nariman we are living in a democratic civil society and in a democratic civil society every citizen is free to hold his/her opinion whatsoever, hence there was nothing contemptuous in the said publication and there was no reason to take cognisance against it”.
Now, if we compare the perception, attitude and the response of our judiciary with that of UK’s judiciary, we find that our judiciary holds unreasonably narrow perception as to the law of contempt of court. Our judiciary needs to broaden its horizon of perception and understanding with regard to the law relating to contempt of court. Our judiciary is still to scale a long distance to become truly a democratic institution like that of UK’s judiciary. Our judiciary should get ready itself to give enough space to citizen’s right to freedom of speech and expression which includes a healthy criticism as well.
(Concluded)