FOR the Indian politician, the Judiciary is the number one bug-bear. So when the seemingly innocuous Supreme Court and High Court (Conditions of Service) Amendment Bill 1996, which did little more than raise the monthly petrol allowance of judges from 150 to 200 litres, came up recently for discussion in Parliament, two-score MPs took the floor to condemn the Supreme Court for painting politicians black and usurping parliamentary powers.
Increasingly, politicians feel that the courts are out to malign them. Congress MP Priyaranjan Das Munshi fumes: "The Judiciary has developed a feeling that politicians are thieves and dacoits, while people on the bench are sons of God."
"The judges' unflattering remarks on the political class have indicated that an individual politician cannot hope to get justice," says former MP Mani Shankar Aiyer. He cites the comments of Chief Metropolitan Magistrate (CMM) Prem Kumar in the Lakhubhai Pathak case—"Various scams show the unholy nexus of politicians, power brokers, bureaucrats and businessmen in debasing and devaluing the moral authority of our political system. But time is no respecter of persons. The basic tenet of the rule of law is: be you ever so high, the law is above you." And also the comments of Additional Sessions Judge S.N. Dhingra in the Kalpnath Rai case—"Civilised society appears to be disintegrating when...a political leader is sought to be arrested for a crime, he, along with his supporters, creates a riot-like situation...when a chief minister gets a dreaded criminal released on parole and shares a platform with him and when a Central minister plays host to a hit man of Dawood"—which were later expunged by the Delhi High Court.
"Judicial activism in individual cases is getting preceded far too often by generalised comments which don't have a direct bearing on the case...if Parliament was on trial, then I can understand the relevance, but when an individual is concerned, is it necessary?" asks Aiyer.
Kalpnath Rai, MP, reportedly had to be restrained from verbally lashing out at Dhingra (who had denied him bail) in the House. A tearful Rai told a sympathetic audience in Central Hall how deeply wounded he was at Dhingra's stern remarks in court. "You (fellow MPs) did nothing. Aren't you ashamed?" he is said to have asked. Das Munshi charges the Supreme Court with assaulting the freedom of the press, citing its strictures against a senior journalist, and with undermining the functioning of the bureaucracy and police. "The IPS acts according to Government policy, but then are put in the dock.
How can they function?" The MPs insist that the Judiciary, unlike Caesar's wife, is not above suspicion. Corruption was not restricted to politicians and bureaucrats alone, they said, acknowledging that not impeaching Justice V. Ramaswami may have been a serious mistake. "Judges can make errors. In the Rajan Pillai case, how cruelly the magistrate behaved," says Das Munshi. The MPs also hinted at nepotism, pointing out that close relatives of some judges are practicing in the same court.
The courts have a partisan attitude, charges Kerala Pradesh Congress Committee chief and Rajya Sabha MP, Vayalar Ravi. In the Lakhu-bhai case, for instance, the NRI businessman claimed to have paid Chandraswami $100,000 for political favo-urs, but was not charged with offering a bribe.
Says CPI leader Somnath Chatterjee: "An impression is gaining ground that the Judiciary is stepping into unsuitable areas". This, he feels, sometimes borders on the absurd. For instance, in a literal attempt to clean up public life, courts have ordered municipal corporation officials to remove garbage and unclog drains...or else. Similarly, the Calcutta High Court has directed that the decibel level of microphones be monitored.
JANATA Dal spokesman Jaipal Reddy is disturbed over the Supreme Court ruling which puts the appointment of judges beyond the purview of the Executive. This subverts the entire system of governance, because it "makes the Supreme Court supreme not only in the judicial sphere but in the system as a whole. It negates the meaning of separation of powers. Where are the checks and counter-checks?" By telling Parliament to enact laws on a uniform civil code, the Supreme Court is effectively trespassing on the powers of the Legislature, he maintains. Likewise, other MPs felt that by fixing a 50 per cent ceiling on the quantum of reservation and quotas for admission of outsiders to medical colleges, the apex court had stepped on the Government's toes.
There is a broad consensus in the United Front that the Judiciary must be reined in, but how? Nobody has an answer. Chatterjee feels the three wings of Government must sit together and work out how the separation of powers envisaged in the Constitution can be reinforced. "The Government is accountable to the House of the People, but to whom is the Judiciary accountable?" he asked.
Jaipal Reddy says that restoring checks and balances could involve a constitutional amendment,"but the Indian polity is currently too divided to permit any such solution...for this we need an ideological consensus and political will". Das Munshi agrees: "To curb judicial activism, Parliament must assert itself and define the powers of the Supreme Court and high court, which draws attention to the Constitution." At the very least, he says, the Lokpal Bill must bring judges within its purview. He has demanded a discussion on judicial reform in the Congress party in Parliament and intends to initiate a move for all-party talks on the subject.
The issue figured in a meeting of the G-10, a group of MPs and ex-MPs of the 10th Lok Sabha, which issued a statement strongly condemning the CMM's remarks in the Pathak case. Like Dhingra's, Kumar's comments too should be expunged, it argued.
While the MPs insist they have no quarrel with the apex court's drive to weed out corruption, significantly, the court's directives to the CBI which is investigating various scams involving politicians, were commented on at length in the House. "If the CBI has to report in any one case only to the Supreme Court, then it should do so in all cases...and logically, the function of the minister for personnel (under whom the CBI falls) should be assumed by a sitting justice of the apex court," argues Aiyer.
Janata Dal MP Biju Patnaik also questioned the propriety of the Supreme Court's directives to the CBI in the hawala case, as did his party colleague P. Kundaramaiah in the Jharkhand Mukti Morcha case.
A section of Congress MPs holds Narasimha Rao responsible for allowing the Supreme Court to assume extra-judicial powers. Ravi observes that the Prime Minister's Office was given free rein, leaving the Government open to corruption and allowing the Judiciary to gain ascendancy. He also blames Rao for "permitting his ministers to do as they pleased".
Das Munshi agrees: "In the last one year, Parliament did not act in the manner it should have. Take the Ayodhya dispute. Instead of applying political will, Parliament tried to refer the matter to the Supreme Court. We have referred issues because we thought we would not be good enough to look after them on our own. It is peculiar that the Supreme Court should decide in which part of the disputed structure at Ayodhya, Ram was born...will he come to the judges in a dream?"
While those defending the Judiciary hold the view that the courts have done a remarkable job in cleansing the system and bringing politicians to book, many MPs feel the courts have been unfair to politicians. Says Aiyer: "You can't have harmony between the three pillars of the state—Judiciary, Executive and Legislature—if one pillar is higher than the others". He feels while the Legislature and Executive have gone out of their way to express their respect for the Judiciary, "the same kind of respect has not always been shown to the other two pillars".
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