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Is Judiciary too forgiving?
April, 24th 2007

The Indian Constitution stands on the three pillars of Executive, Legislature and Judiciary, each acting as a `check and balance' on the other. Such checks and balances are necessary on all three and it was not the intention of the Constitution writers that the Judiciary would be unfettered and act as `check and balance' on the other two. Some tension among the three was, therefore, part of the Constitution framework, perhaps in the belief that such stress is necessary for the efficient functioning of the system. Yet, stress and tension beyond the optimum level, especially if created not by the objective requirements of the situation but by reasons political can be destructive first of the individual limbs and eventually the entire body politic. Recent instances of the political Executive literally `passing strictures' on the Judiciary makes one wonder whether this has already started.

As optimists may say, the political executive may make noise but the judicial caravan will roll on. But, then, the Judiciary consists of human beings. As with the bureaucracy, continued political pounding may soften, if not break, the bedrock of judicial independence. Some judges, if for no other reason than to avoid tension and controversy, may choose to tread the path of least resistance.

Wrong signals

Taking a soft view of ministerial statements in some States which, according to the Judiciary itself, amounted to `scandalising the courts ' the standard definition of contempt of court has sent wrong signals not only to the people, who regard the Judiciary as the forum of last resort against Executive excesses but, worse, to the political class that may now feel emboldened to push the Judiciary.

Even V. V. Giri as President had to appear before the Supreme Court to give evidence. But in a recent case, an erring minister was neither summoned before the court nor even required to submit a written apology. The explanatory statement of the minister/the chief minister did not contain the word `regret' or `apology'. A petition seeking to review the judgment of the High Court has, disappointingly, been dismissed by the apex court without even adverse comments on the ministerial outburst.

There is another important legal and Constitutional aspect to the issue. According to Kautilya, if a commoner is fined ten gold coins for an offence, a king should be fined one hundred gold coins for the same offence. When ordinary citizens and even distinguished civil servants with otherwise unblemished records have in the past been hauled up and even punished for what technically amounted to contempt of court, would not taking lightly deliberate acts of contempt of court by politicians in power strike at the very root of the concept of equality before law and amount, maybe unwittingly, to placing certain persons above the law?

The consequences

This raises the spectre of the Executive having the upper hand over the Judiciary. One devoutly hopes that what W. B. Yeats wrote will not come to pass: " The best lack conviction; the worst are full of passionate intensity."

The Indian Constitution stands on the three pillars of Executive, Legislature and Judiciary, each acting as a `check and balance' on the other. Such checks and balances are necessary on all three and it was not the intention of the Constitution writers that the Judiciary would be unfettered and act as `check and balance' on the other two. Some tension among the three was, therefore, part of the Constitution framework, perhaps in the belief that such stress is necessary for the efficient functioning of the system. Yet, stress and tension beyond the optimum level, especially if created not by the objective requirements of the situation but by reasons political can be destructive first of the individual limbs and eventually the entire body politic. Recent instances of the political Executive literally `passing strictures' on the Judiciary makes one wonder whether this has already started.

As optimists may say, the political executive may make noise but the judicial caravan will roll on. But, then, the Judiciary consists of human beings. As with the bureaucracy, continued political pounding may soften, if not break, the bedrock of judicial independence. Some judges, if for no other reason than to avoid tension and controversy, may choose to tread the path of least resistance.

Wrong signals

Taking a soft view of ministerial statements in some States which, according to the Judiciary itself, amounted to `scandalising the courts ' the standard definition of contempt of court has sent wrong signals not only to the people, who regard the Judiciary as the forum of last resort against Executive excesses but, worse, to the political class that may now feel emboldened to push the Judiciary.

Even V. V. Giri as President had to appear before the Supreme Court to give evidence. But in a recent case, an erring minister was neither summoned before the court nor even required to submit a written apology. The explanatory statement of the minister/the chief minister did not contain the word `regret' or `apology'. A petition seeking to review the judgment of the High Court has, disappointingly, been dismissed by the apex court without even adverse comments on the ministerial outburst.

There is another important legal and Constitutional aspect to the issue. According to Kautilya, if a commoner is fined ten gold coins for an offence, a king should be fined one hundred gold coins for the same offence. When ordinary citizens and even distinguished civil servants with otherwise unblemished records have in the past been hauled up and even punished for what technically amounted to contempt of court, would not taking lightly deliberate acts of contempt of court by politicians in power strike at the very root of the concept of equality before law and amount, maybe unwittingly, to placing certain persons above the law?

The consequences

This raises the spectre of the Executive having the upper hand over the Judiciary. One devoutly hopes that what W. B. Yeats wrote will not come to pass: " The best lack conviction; the worst are full of passionate intensity."

P. K. Doraiswamy
(The author is former Special Chief Secretary, Government of Andhra Pradesh.)

 
 
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