Law and behold!

 Nitish K Singh |  2013-08-25 19:24:27.0  |  New Delhi

Law and behold!

Lately a number of politicians have lashed out at the Supreme Court over a few judgments, accusing it of overreaching the role of executive. From time to time, the political classes have been attacking the judiciary, charging the latter of encroaching upon the rights of those responsible for legislating. Notwithstanding the fact, that the general masses of the country hail the decisions of the court, legal experts say it is a question of interpretation. If the executive fails to perform its duties, the judiciary will have to step in.


Some recent verdicts of the apex court united the otherwise viciously divided political class to seek nullification of those orders and it resulted in the government filing review petitions against all the verdicts in  in the apex court. For example, while on on one hand, the government has filed review petition on convicted lawmakers, the Election Commission of India, in another case in the apex court, wants to bar those from contesting polls against whom charges have been framed in a criminal case.

Some of the recent verdicts of the Supreme Court that have come under attack from the political class include – the court’s ruling on disqualification of lawmakers from the date of conviction; no contesting of election from behind the bar; no reservation in appointment for faculty posts in speciality and super speciality courses in medical colleges, including the All India Institute of Medical Sciences; guideline to the Election Commission to frame a mechanism on freebies offered by the political parties, among others. While, in some cases, the political class has openly attacked the judiciary, in some, the attack is veiled, like in the case of the freebie verdict.

Apart from these judgments, the political class has also questioned the apex court order allowing dance bars in Mumbai to open after they were closed down seven years ago. Belligerent lawmakers from Maharashtra retorted that if the Supreme Court wants to run the country, let its judges be elected. More recently, the Maharashtra government called the apex court’s direction on police reforms unconstitutional, saying they were an encroachment on the executive’s function. Some other states also expressed similar views on the issue. Just after the apex court rulings on these issues, attacks on judiciary were started by the political class openly.

And when the monsoon session of  Parliament commenced, leaders, cutting across the party line, united over the issue and forced the government to file review petitions in the Supreme Court against those verdicts.
Janata Dal (United) chief and MP Sharad Yadav lashed out at the judiciary for ‘overreaching’ the role of executive in the wake of a few recent SC orders. Sharad Yadav was not the only politician who raised the question of judiciary overreaching the executive. Just before the start of the monsoon session, an all-party delegation met union parliamentary affairs minister Kamal Nath. After the meeting was over, Kamal Nath told reporters that lawmakers unanimously expressed serious concern over the Supreme Court judgments on the issues of reservations and disqualification of jailed members of the House, thereby questioning the supremacy of Parliament.

After the monsoon session started, on the very first day, the political class raised the issue in Parliament and there were outbursts from lawmakers on these court decisions. They interjected asserting that Parliament was there to make laws and not the courts.

Speaking during the zero hour on the first day of the monsoon session, Sharad Yadav asked the government to bring a constitutional amendment in Parliament to nullify the court verdict. ‘Constitution bench always does good work in matters of corruption but whenever Parliament takes some steps to remove social inequality, these people always play tricks to obviate it. They always do something so that Parliament does not function,’ Yadav said. Congress MP P L Punia also spoke on the issue and asked, ‘I want to know whether the future of the country will be decided by five people or by Parliament, which represents the people.’

Samajwadi Party supremo Mulayam Singh Yadav asked the government to take steps to nullify the Supreme Court ruling. ‘After the Supreme Court verdict, will deprived people remain peons? Will they remain sweepers? This is a conspiracy,’ he erupted.
Is that really so? Is the judiciary actually overreaching executive or is it that the judiciary is being forced to step in because of the resounding failures of the executive and legislature to fulfill the aspirations of the people?

The just-retired Chief Justice of India Altamas Kabir, when asked if the judiciary was encroaching into the role of executive on the day of his retirement, had simply dismissed the criticism. He said, ‘Well, the reaction to that is simple. That we are doing our job. Legislature is doing its job, the executive is doing its own job. What was fair to me, something which was against the constitutional rights of the people, is not, is certainly not, the jurisdiction of the legislature or the executive. If the constitutional rights of the people have been affected, it is the duty of the judiciary to see that they are duly protected.’

Asked about the prevailing perception that the judiciary was overreaching into the domain of the executive, Justice Kabir had said there was no friction at all between judiciary and other organs. ‘There is no question of encroachment. You see, if somebody does not do his work, then, we as the court, we have the power of mandamus to tell him to do his work. There is no question of overreaching. It is a question of people not doing their work, making them do their work,’ he said.
Asked if that was why judiciary steps in, he said, ‘That’s right, that’s just it.’ However, he had not replied to a question on a perception that the legislature was not working properly saying he would not go into the ‘very controversial’ issue. Noted constitutional expert Subhash C Kashyap, when asked to comment on the issue, said that it is a matter of perception and question of interpretation. He said, ‘It is a matter of perception. While the courts are increasingly passing directions, executive say that the courts are overreaching but it is a matter of opinion. It is a question of interpretation. Our Constitution has clearly defined the role and responsibility of both. If the legislature does not act, then the court intervenes. Court has the power.’

Kashyap said that our Constitution has defined the role and responsibility of each organ and a problem will arise only when they try to assume the role of others. ‘The Constitution of India very clearly defines and delimits the jurisdiction and authority of three organs of the state. Every organ of the state is supreme in its own sphere. None of them can be said to be overall supreme. Their inter-relationship and powers are defined and delimited by the written constitution. Problem arises only when either of them tries to assume the role of others,’ he said.

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