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"Judges Have New Ideas About Power"

Senior CPI(M) parliamentarian and eminent lawyer Somnath Chatterjee spoke to Outlook about judicial activism. Excerpts

"Judges Have New Ideas About Power"
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Do you think the judiciary is overstepping its limits? For example, the recent directives to the CBI by the Patna and Delhi High Courts.

The trouble these days is that legal and judicial matters are being considered on the basis of the personalities involved. You cannot decide on rightness or wrongness on the basis of whether A or B should be taught a lesson. My personal view is that it is only in extraordinary circumstances that an authority like the CBI director should be supplanted. When I say this, let me make it clear that I am not speaking in favour or against Laloo Yadav but on legal principles. So all I can say is it needs a strong reason to supplant a legal authority.

I hold no brief for Laloo. If he is guilty, let him suffer. But you find a situation whereby over the CBI head, a body has been created consisting of two officers. It is strange that sometimes the CBI is placed on a pedestal and sometimes it is accused of not functioning properly. Anyhow, the court has selected the CBI as its agency. It has said officer A, B or C should do this or that and report directly to the court—this is an extension of the court’s jurisdiction. At one level the courts are laying down new procedures and new amendments of the law, which is the prerogative of the legislature. I cannot say whether this will have a good or bad effect, but judicial power should be exercised carefully.

Is the failure of the executive responsible for judicial activism?

Well, it is obviously the failure of the executive. That is why people are supporting the judiciary and are up against us. But with lakhs and lakhs of cases pending in the courts, hasn’t the judiciary also failed? It is true that certain matters which the executive should have done with great commitment and involvement have not been done—like bringing those guilty of corruption to book—because the Congress was in power and was itself a beneficiary of corruption. The guilty people were not punished and are now caught in the web of judicial activism.

Is this a dangerous trend?

In terms of the courts’ exercise of power under Article 226, the importance of this jurisdiction is such that it should be sparingly used. Many matters which the courts should not take up are being taken up...new provisions are being laid down and the courts are making laws. For example, how can the courts decide the rules for constructing a house? How can they order that Delhi streets should be cleaned up? Courts should not pass decrees where constant monitoring is required.

The common man is very happy with the courts because they have acted in national interest in many cases, like human rights. This trend should continue in deserving cases. But the distinction between good and bad is getting blurred. Power should be exercised at the highest level in cases which have a national bearing. Hawala was rightly taken up. Likewise, the JMM bribery case. These were good decisions. However, too often while many traditional cases are pending in the courts, activism takes up a lot of judicial time. Everyone is filing PILs without any locus standi. These cases are decided only on the judge’s perception of what is public interest. The legislature has no voice although we have to face elections every five years while the judiciary does not have to face the test.

Extension of judicial power is very exciting but troubles may arise. Today every judge has new ideas about his power and authority with the result that the distinction between the Supreme Court and High Courts is being blurred.

What is your view on the Lok Pal Bill?

Conceptually, it must be there. Unfortunately, the credibility of politicians has taken a severe beating. Therefore, it will be good if the Lok Pal Bill is passed. It may help tackle corruption in high places.

Should Parliament have proceeded against Justice V. Ramaswami instead of exonerating him?

That was a great mischief done by the Congress. It was a most dangerous example of a compromise with corruption. Please note that not a single MP voted in favour of the judge. But the Congress abstained and we could not get the requisite two-thirds majority to impeach Justice Ramaswami.

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