Eyeball To Eyeball?

[The transcript of the BBC Hindi special programme Aapki Baat BBC KeSaath with former Solicitor General of India, Harish Salve and CPI(M)'sdeputy leader in Lok Sabha, Mohammad Salim, while it does not answer thequestion, provides a clue to the mistaken terms of reference. Instead of a particularjudgement being debated or criticised, we are actually witnessing alevelling of broad charges against the "judiciary" per se. Itcould well be argued that all the court needed to possibly say was that 50%reservation for the government amounts to nationalisation of unaidedinstitutions, thus violating the protections given to them under Articles 19 and26, and perhaps it has all got tangled up with observations about thecompatibility or otherwise of reservations with merit thus leading to thequestion whether the argument about merit applies only to professional colleges.Perhaps the parliamentarians actually needed to understand the -- admittedlylengthy -- judgement and ponder on their own culpability, along with theexecutive abdicating its responsibilities, starting with l'affaire Jharkhand --Ed]

Nagendar Sharma: Is the confrontation between judiciary on the onehand and the executive and the legislature on the other leading the Indiandemocracy on a dangerous path?

Harish Salve: I would not call it a position of confrontation betweenthe two. A particular situation has arisen, which, I think, at times, happens indemocracies. Such a situation arose in United States earlier, it has happenedhere now. What is important is that the entire issue should be properlyunderstood. Reasons for such a situation to have arisen are many, we lawyersfeel that those criticising the Supreme Court decisions do not have a properunderstanding of the Constitution. On the other hand, some other people have adiscomfort as to why the judiciary is giving such decisions. However, whateverbe the differences they should be resolved through dialogue.

Mohammad Salim: Well, it is not confrontation, but a situation ofconfrontation could be there. I think the Constitution has clearly laid downguidelines for both the judiciary as well as the legislature, and both the armsare mature enough to work within their own spheres. The problem begins, if anyof the democratic arms do not function properly, leaving themselves vulnerableto outside interference, and it is that interference which is the root cause ofthe problem. Therefore it is crucial for all the wings of Indian democracy towork within their own defined spheres and not try to increase their influence.

Listener from Bihar : My first question is for Mr Salve: The SupremeCourt has given certain historic but controversial decisions in recent yearsfrom banning strikes to pre-poning vote of confidence in Jharkhand assembly andrecently declaring Illegal Migrants Act in Assam as null and void. It gives animpression that law changes with retirement of judges. Is that the case? Mysecond question is for Mr Salim: Look at the fees of professional institutionslike the IIMs and IITs. Is this higher education only for the rich and poor areonly to be lectured? What are the parliamentarians doing?

Harish Salve: Well, law does not change with coming and going ofjudges, but it also is not static: it evolves. Just as we witness thedevelopment of a society with growth of social norms, the law also evolves withtime. Now the listener has pointed out the decision on strikes. Well, at thattime what the judges thought was in accordance with the law was stated and thatis why strikes were declared unconstitutional.The disturbing trend today is, asyou asked a short while back, regarding the impression of confrontation betweenSupreme Court and Parliament. It is not the decisions of the court that arebeing singled out but the Supreme Court itself, per se, which is beingcriticised now, as has been seen in the latest case of reservation in privateprofessional institutions. The decisions which do not suit a few select peopleare being questioned. Nobody is saying that a particular decision is wrong, butthe trend is to question why the decision was given.

Mohammad Salim: So far as the listener has asked me about costlyprofessional education in the country, I agree with him. There is no doubt thathigher and professional education in the country today is increasingly gettingout of the reach of common people. That is why our consistent demand to the UPAgovernment is that a bill be brought to bring this under control. Some sort ofregulation is required on private institutions and also those of professionaleducation. What is worrying today is that the rich who have resources can easilymanage higher and professional education, and at times when some governmentorders do not suit them, they challenge them in courts. Since they haveresources, they can hire costly lawyers, who put across their point of view andpoor people go unrepresented. The rich are able to swing court decisions theirway.

Nagendar Sharma: Mr Salim you are pointing out that even law is out ofreach for common and poor people, but what has the legislature done to safeguardthe rights of the poor?

Mohammad Salim: Well, the parliament has been enacting laws for thepoor time and again. I am not saying these are sufficient, but efforts are beingmade, and the passage of Rural Employment Guarantee Bill is one such timelyexample. But what is happening today in the country is that in this era ofliberalisation, like the executive, the judiciary also is being used to crushthe rights of common people. Now tell me what is the justification of puttingcurbs on formation of unions, associations etc., and of banning strikes? Thisall is amounting to pushing the common people away from fighting for their justrights.

Listener from Rae Bareli : In my view the courts of the country aredoing their job well. It is the politicians who, because of their vote bankpolitics, are interfering in judiciary's work, and that is causing tensionbetween the two. Why is caste a criterion for reservations, why not economicbackwardness? Can these sops take the country forward?

Harish Salve: Well, the root cause of tension as I said earlier is thecriticism of the court instead of criticising its decisions. I agree with thelistener that basic problem of politicians is: Why did the Supreme Court strikedown reservation for SCs, STs and OBCs? Can anyone tell me where did the SupremeCourt say that profit-making should be allowed in education? It is very easy tosay that higher education is for the rich only.

If you are talking about medical education, the cost per student is aroundtwo lakh rupees, so if you have hundred students, it comes to two crore rupees,a recurring expenditure. Now if there is a private institution which does nottake any financial help from the government, from where would it get this money,apart from the fees? It is also very easy to say that such institutions are notfulfilling their social responsibility of allowing poor students to study there,and the Supreme Court has turned a blind eye towards this. Why don't thepoliticians ask the government to start scholarship schemes in private collegesand, secondly, private foundations should fund poor students, that could be theway out, but here the single track operation is to criticise the Supreme Court.

Mohammad Salim: Well, the argument given, i.e.to ask from where wouldthe private institutions generate resources, is a fallacious one. People like MrHarish Salve should bear in mind that education mafias are operating in thiscountry in states like Maharashtra, Karnataka and Tamil Nadu. Private collegeowners who started with single room colleges today own chains of more thantwenty private professional colleges with huge buildings. If there were to be aresource crunch, how did these colleges flourish? All these problems are notthere when you look at higher and professional education in government sector.Look at the state of West Bengal, you do not have a single private medicalcollege, and the annual fees is twelve thousand rupees, whether you are rich orpoor.

Now a listener has objected to caste based reservation, can he please tell methat why he does not speak against the reservation for the rich? The privatecolleges charging exorbitant fees are in an undeclared way reserved for therich. It is this section of the society which approaches higher judiciary whenits interests are hurt, and decisions go their way. Which poor person has themeans and ways to approach higher judiciary? The irony is that there is nobodyto plead the cases of common and poor people, and arguments are one-sided,loaded in favour of the rich.

But my argument is not confined to the Supreme Court decision alone, myparty's demand is that the UPA government regulate education in private sector.Education cannot be left into the hands of market forces, and loot by privatecolleges cannot be allowed to go unchecked. The UPA government got amandate from the common people, and it must live up to their expectations, and abill should be brought in parliament for social justice in education. The effortshould be made to bridge the gap between the rich and poor, it should not bewidened, otherwise the country could be heading towards anarchy.

Listener from Patna : I think the Supreme Court has lost its way as isclear by its decision to strike down reservation in private professionalcolleges. It has attacked the poor people, and also the trend in supreme Courtis to listen to cases which would get it popularity rather than listen to somany other pending cases,. Why is this happening?

Harish Salve: Well, popular and important are two different things. Sofar as my experience has been, for the courts, and especially the Supreme Court,it is the importance of a case which is the criterion for an early hearing. Thislistener is from Patna, now, for example, I would like to tell him, take thecase of dissolution of Bihar assembly. It is a case of urgent public importance,that is why it was taken up immediately. Similarly, this case of reservation inprivate colleges was heard on priority by a seven judge bench of the SupremeCourt, so that it could be made clear to the students what the law was, and thecourt did not want to waste the precious time of the students. How popular thecourt decision has been on this reservation case is for all to see. The Courtdoes not want confusion to linger on and the public should have a clear view ofthe entire thing.

Listener from UAE : In India , as compared to other pillars ofdemocracy, judiciary is relatively seen as functioning better, and politicianshave a corrupt image. What can be done to keep the relations between parliamentand judiciary cordial?

Mohammad Salim: Well, whatever image you have of politicians, you havea freedom of expression in a democracy, and I would not like to interfere withit. If a democracy is strong, then only would the judiciary also be able to workfearlessly. Tthis message India has successfully given to the world.Parliamenthas no intention of interfering in judiciary's work. Politicians in Indiandemocracy are directly accountable to the citizens of the country. Every fiveyears, we have to face the electorate, and they judge our work. The previousgovernment was rejected by the people of the country, when not many analysts hadthought this was likely. Similarly, if the present UPA government does not passthe test of public scrutiny, it would meet the same fate, this is the beauty ofour democracy, and its checks and balances.

Nagendar Sharma: Mr Salim, you have raised an interesting point onaccountability. Mr Salve there is a feeling that there is lack of accountabilityin judiciary, how do you respond?

Harish Salve: I think this is a misplaced notion. It is the sense ofresponsibility which is crucial in a democracy for the successful running of anyinstitution. When the Constitution was framed, it lay emphasis on two kinds ofinstitutions. Firstly, those which are directly accountable to the politicalsovereign, and secondly, those which would interpret the Constitutionindependently to see that the politically answerable institutions are workingwithin the spheres defined by the Constitution. If any amendments are requiredin the Constitution, it is the work of the Parliament, and to see that thecountry's democratic institutions are working in accordance with the spirit ofthe Constitution is the work of the judiciary. Courts are not in any sort ofcompetition with the parliament, and it is incorrect to say that there is lackof accountability in the judiciary.

The most unfortunate part today is that without reading and understanding theSupreme Court judgement, there was criticism by the MPs in Parliament that theSupreme Court is against social justice. Tell me, is this fair ?

Nagendar Sharma: Mr Salim how do you respond?

Mohammad Salim: Well, it has been happening in this country, that somepeople have always believed that they belong to a select group of intellectuals,who alone understand complex issues, whereas others do not have thisunderstanding. We call it Brahmanism, and the fight for social justice isprecisely against such practices.

Secondly, the MPs have been critical only of the Supreme Court decision onreservation in private colleges, and not of the court. I think all MPs are awareof the fact that speaking against Supreme Court leads to contempt of court. IfMr Salve is so worried about the judiciary, he would do well to go through thestatement of a recently retired chief justice of the country, who had pointedout about judicial corruption and long delays in deciding the cases. But morethan the Supreme Court decision we want the UPA government to fulfil its socialresponsibility, and for this a bill should be brought in parliament to finallydecide about providing reservation to students belonging to weaker sections ofthe society to study in private professional colleges.