When democracy starts relying more on judiciary

Recent instances showed that Supreme Court took up many cases arbitrarily “in public interest” while serious cases are still biting the dust

Judiciary is the guardian of our constitution and the last hope for the citizens seeking redressal of their grievances. It continues to command huge respect but certain recent actions and directives have raised questions over it going beyond its jurisdiction and encroaching into the domain of the other two pillars of democracy.

There have also been instances of the government abdicating its responsibility or shifting it to the judiciary as in the case of its stand on the abolition of Article 377 when it left the decision to “the wisdom of the court” but such instances are rare. The judiciary, on the other hand, had been taking up issues of governance with increasing frequency and that too at the level of Supreme Court and various High Courts.

This is when three crore cases are pending in various courts of the country, including about one crore before the higher judiciary, for several years, even decades. Something that is of equal significance is that about 40 per cent of the posts of judges are lying vacant in high courts across the country. The number of cases pending is increasing each year with, ironically, the government as the largest litigant.

Yet, the higher judiciary revels are taking up issues arbitrarily and even where there is no violation of laws. Very often the judges come out with scathing observations which come out in the media but do not find any place in the final judgments. Some of these cases are too technical and complicated for the judiciary to come to any well thought out and reasoned verdict.

Its latest decision to enter the domain of the government is the directive to provide details of the price of the fighter aircraft from Rafale “in a sealed envelope”. There is no doubt that the deal has kicked up a major storm and there are allegations of nepotism and favouritism in finalising the deal. The sudden decision to purchase 36 state-of-art fighter aircraft and to facilitate a 30,000 crore contract in favour of Anil Ambani surely reeks of a scandal.

The government has been on the back foot and had been stonewalling the details about the deal on the grounds that the price at which the agreement was aimed was a “secret”. It had also been taking the plea that disclosing details about its capabilities and weapon systems would compromise national security and safety.

Congress is seeking to make it a major plank to take on the Modi Government in the general elections did next year. The government is also fighting with its back to the wall and has refused to make public the details of the deal.

It is under these circumstances that the apex court asked the government to furnish the price of each fighter aircraft without disclosing to technical details which could jeopardise the safety and security of the country.

The highest court has, however, not indicated as to how would it come to any conclusion about the correctness of the aircraft prices unless it has comparisons to study. Again, does it have the competence to study such a deal with the specifications unknown to it. How will it come to any reasoned conclusion of an illegal deal. The government too has not taken any stand till the time of this edition going to the Press. The Comptroller and Auditor General of India would be in a far better position to judge the details.

There have been several other instances in the recent past where cases are taken up arbitrarily “in public interest” while serious cases remaining pending for years together. In one recent instance, a group of policemen accused of killing members of a particular section of society in Muzaffarnagar were convicted and sentenced after a gap of 31 years!

In another case picked up by the courts suo moto, the Punjab and Haryana High Court had been spending hours of its time over scores of dates to question the functioning of the Chandigarh International Airport. The court had been lambasting the airlines for not starting flights, has been asking some of the airlines to better shutdown and even threatening to order the closure of the airport. If there are questions of violation of laws in such cases, these are being stretched a bit too much.

Then there is a tendency to hastily pass directions and then take those back. One such recently the decision was to ban liquor shops, advertisements and bars from within an area of 500 meters from the highways. This led to the closure of hundreds of shops and bars and the disruption of thousands of lives. There were reports that guzzlers would take a detour of 500 meters and then get liquor to consume in their vehicles – certainly a worse situation than that existed before the court directive. Experts also pointed out that those who like to drink don’t make up their minds after coming across a shop or getting attracted by an advertisement. Surely there were other ways to curb the menace than the diktat to remove shops and hoardings from the highways. Subsequently, the directive was taken back and it is back to business as usual.

Similarly, the directive to compulsorily play the national anthem before the screening of a movie was a bizarre move. Attempts to find a precedent like this in another country were futile. It could be happening in North Korea but there is no way to cross check.

If the idea behind the order to play the national anthem before the screenings were to inculcate the spirit of patriotism and nationalism, it was a misplaced idea. There were certain incidents in which people who didn’t stand up were roughed up by the so-called patriotic people. The court apparently wanted all citizens to wear nationalism on their sleeves to prove their patriotism.

The Apex court could have done better by implementing the order first in Supreme Court, all the high courts and the subordinate judiciary and should have ordered playing of the national anthem at the start of their working hours. It would have made good sense if the order was to all educational institutions, including colleges and universities, to start working hours with the national anthem. And why not all government departments where ministers and bureaucrats should have been directed to stand in attention at the opening of office hours.

Possibilities were endless but the court directive picked up only the place where people go for entertainment. Subsequently, another bench diluted the directive by saying it was not mandatory for cinema owners to play the national anthem.

One can go on and on citing such cases even when the issue of vital public and individual interests are pending. How can the judiciary, for instance, justify a delay of over 30 years in bringing to book those responsible for the attacks on Sikhs in 1984.

The judiciary, which recently witnessed the spectacle of four senior-most judges of Supreme Court to publicly raise their voice against the Chief Justice of India, must look inward and set some of its priorities right. Citizens of the country can’t afford to lose faith in the institution of judiciary.