[The transcript of the BBC Hindi special programme Aapki Baat BBC Ke Saath with former Solicitor General of India, Harish Salve and CPI(M)'s deputy leader in Lok Sabha, Mohammad Salim, while it does not answer the question, provides a clue to the mistaken terms of reference. Instead of a particular judgement being debated or criticised, we are actually witnessing a levelling of broad charges against the "judiciary" per se. It could well be argued that all the court needed to possibly say was that 50% reservation for the government amounts to nationalisation of unaided institutions, thus violating the protections given to them under Articles 19 and 26, and perhaps it has all got tangled up with observations about the compatibility or otherwise of reservations with merit thus leading to the question whether the argument about merit applies only to professional colleges. Perhaps the parliamentarians actually needed to understand the -- admittedly lengthy -- judgement and ponder on their own culpability, along with the executive abdicating its responsibilities, starting with l'affaire Jharkhand -- Ed]
Nagendar Sharma: Is the confrontation between judiciary on the one hand and the executive and the legislature on the other leading the Indian democracy on a dangerous path?
Harish Salve: I would not call it a position of confrontation between the two. A particular situation has arisen, which, I think, at times, happens in democracies. Such a situation arose in United States earlier, it has happened here now. What is important is that the entire issue should be properly understood. Reasons for such a situation to have arisen are many, we lawyers feel that those criticising the Supreme Court decisions do not have a proper understanding of the Constitution. On the other hand, some other people have a discomfort as to why the judiciary is giving such decisions. However, whatever be the differences they should be resolved through dialogue.
Mohammad Salim: Well, it is not confrontation, but a situation of confrontation could be there. I think the Constitution has clearly laid down guidelines for both the judiciary as well as the legislature, and both the arms are mature enough to work within their own spheres. The problem begins, if any of the democratic arms do not function properly, leaving themselves vulnerable to outside interference, and it is that interference which is the root cause of the problem. Therefore it is crucial for all the wings of Indian democracy to work within their own defined spheres and not try to increase their influence.
Listener from Bihar : My first question is for Mr Salve: The Supreme Court has given certain historic but controversial decisions in recent years from banning strikes to pre-poning vote of confidence in Jharkhand assembly and recently declaring Illegal Migrants Act in Assam as null and void. It gives an impression that law changes with retirement of judges. Is that the case? My second question is for Mr Salim: Look at the fees of professional institutions like the IIMs and IITs. Is this higher education only for the rich and poor are only to be lectured? What are the parliamentarians doing?
Harish Salve: Well, law does not change with coming and going of judges, but it also is not static: it evolves. Just as we witness the development of a society with growth of social norms, the law also evolves with time. Now the listener has pointed out the decision on strikes. Well, at that time what the judges thought was in accordance with the law was stated and that is why strikes were declared unconstitutional.The disturbing trend today is, as you asked a short while back, regarding the impression of confrontation between Supreme Court and Parliament. It is not the decisions of the court that are being singled out but the Supreme Court itself, per se, which is being criticised now, as has been seen in the latest case of reservation in private professional institutions. The decisions which do not suit a few select people are being questioned. Nobody is saying that a particular decision is wrong, but the trend is to question why the decision was given.
Mohammad Salim: So far as the listener has asked me about costly professional education in the country, I agree with him. There is no doubt that higher and professional education in the country today is increasingly getting out of the reach of common people. That is why our consistent demand to the UPA government is that a bill be brought to bring this under control. Some sort of regulation is required on private institutions and also those of professional education. What is worrying today is that the rich who have resources can easily manage higher and professional education, and at times when some government orders do not suit them, they challenge them in courts. Since they have resources, they can hire costly lawyers, who put across their point of view and poor people go unrepresented. The rich are able to swing court decisions their way.
Nagendar Sharma: Mr Salim you are pointing out that even law is out of reach for common and poor people, but what has the legislature done to safeguard the rights of the poor?
Mohammad Salim: Well, the parliament has been enacting laws for the poor time and again. I am not saying these are sufficient, but efforts are being made, and the passage of Rural Employment Guarantee Bill is one such timely example. But what is happening today in the country is that in this era of liberalisation, like the executive, the judiciary also is being used to crush the rights of common people. Now tell me what is the justification of putting curbs on formation of unions, associations etc., and of banning strikes? This all is amounting to pushing the common people away from fighting for their just rights.
Listener from Rae Bareli : In my view the courts of the country are doing their job well. It is the politicians who, because of their vote bank politics, are interfering in judiciary's work, and that is causing tension between the two. Why is caste a criterion for reservations, why not economic backwardness? Can these sops take the country forward?
Harish Salve: Well, the root cause of tension as I said earlier is the criticism of the court instead of criticising its decisions. I agree with the listener that basic problem of politicians is: Why did the Supreme Court strike down reservation for SCs, STs and OBCs? Can anyone tell me where did the Supreme Court say that profit-making should be allowed in education? It is very easy to say that higher education is for the rich only.
If you are talking about medical education, the cost per student is around two 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 not take 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 not fulfilling their social responsibility of allowing poor students to study there, and the Supreme Court has turned a blind eye towards this. Why don't the politicians ask the government to start scholarship schemes in private colleges and, secondly, private foundations should fund poor students, that could be the way 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 would the private institutions generate resources, is a fallacious one. People like Mr Harish Salve should bear in mind that education mafias are operating in this country in states like Maharashtra, Karnataka and Tamil Nadu. Private college owners who started with single room colleges today own chains of more than twenty private professional colleges with huge buildings. If there were to be a resource crunch, how did these colleges flourish? All these problems are not there 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 medical college, and the annual fees is twelve thousand rupees, whether you are rich or poor.
Now a listener has objected to caste based reservation, can he please tell me that why he does not speak against the reservation for the rich? The private colleges charging exorbitant fees are in an undeclared way reserved for the rich. It is this section of the society which approaches higher judiciary when its interests are hurt, and decisions go their way. Which poor person has the means and ways to approach higher judiciary? The irony is that there is nobody to 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, my party'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 private colleges cannot be allowed to go unchecked. The UPA government got a mandate from the common people, and it must live up to their expectations, and a bill should be brought in parliament for social justice in education. The effort should be made to bridge the gap between the rich and poor, it should not be widened, otherwise the country could be heading towards anarchy.
Listener from Patna : I think the Supreme Court has lost its way as is clear by its decision to strike down reservation in private professional colleges. It has attacked the poor people, and also the trend in supreme Court is to listen to cases which would get it popularity rather than listen to so many other pending cases,. Why is this happening?
Harish Salve: Well, popular and important are two different things. So far 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. This listener is from Patna, now, for example, I would like to tell him, take the case 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 in private colleges was heard on priority by a seven judge bench of the Supreme Court, so that it could be made clear to the students what the law was, and the court did not want to waste the precious time of the students. How popular the court decision has been on this reservation case is for all to see. The Court does not want confusion to linger on and the public should have a clear view of the entire thing.
Listener from UAE : In India , as compared to other pillars of democracy, judiciary is relatively seen as functioning better, and politicians have a corrupt image. What can be done to keep the relations between parliament and judiciary cordial?
Mohammad Salim: Well, whatever image you have of politicians, you have a freedom of expression in a democracy, and I would not like to interfere with it. If a democracy is strong, then only would the judiciary also be able to work fearlessly. Tthis message India has successfully given to the world.Parliament has no intention of interfering in judiciary's work. Politicians in Indian democracy are directly accountable to the citizens of the country. Every five years, we have to face the electorate, and they judge our work. The previous government was rejected by the people of the country, when not many analysts had thought this was likely. Similarly, if the present UPA government does not pass the test of public scrutiny, it would meet the same fate, this is the beauty of our democracy, and its checks and balances.
Nagendar Sharma: Mr Salim, you have raised an interesting point on accountability. Mr Salve there is a feeling that there is lack of accountability in judiciary, how do you respond?
Harish Salve: I think this is a misplaced notion. It is the sense of responsibility which is crucial in a democracy for the successful running of any institution. When the Constitution was framed, it lay emphasis on two kinds of institutions. Firstly, those which are directly accountable to the political sovereign, and secondly, those which would interpret the Constitution independently to see that the politically answerable institutions are working within the spheres defined by the Constitution. If any amendments are required in the Constitution, it is the work of the Parliament, and to see that the country's democratic institutions are working in accordance with the spirit of the Constitution is the work of the judiciary. Courts are not in any sort of competition with the parliament, and it is incorrect to say that there is lack of accountability in the judiciary.
The most unfortunate part today is that without reading and understanding the Supreme Court judgement, there was criticism by the MPs in Parliament that the Supreme 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 some people have always believed that they belong to a select group of intellectuals, who alone understand complex issues, whereas others do not have this understanding. We call it Brahmanism, and the fight for social justice is precisely against such practices.
Secondly, the MPs have been critical only of the Supreme Court decision on reservation in private colleges, and not of the court. I think all MPs are aware of the fact that speaking against Supreme Court leads to contempt of court. If Mr Salve is so worried about the judiciary, he would do well to go through the statement of a recently retired chief justice of the country, who had pointed out about judicial corruption and long delays in deciding the cases. But more than the Supreme Court decision we want the UPA government to fulfil its social responsibility, and for this a bill should be brought in parliament to finally decide about providing reservation to students belonging to weaker sections of the society to study in private professional colleges.
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