Judiciary: Do not leave the crease

By Prabhakar Timble
17 October 2012 09:43 IST

An individual or a NGO going berserk can be ignored or condoned. Mr. Arvind Kejriwal activity of burning electricity bills, exhorting Delhi households not to pay electricity bills and restoring power connections of defaulters is irresponsible behaviour and an attempt to generate mass mania by usurping law. Such populist outbursts are expected from a person out to launch a new political outfit. We do not expect the courts and the judiciary to commit excesses and intrude into the domain of the Executive and Legislature. Of late, the Courts are crossing the border lines and the contours laid down under the constitution and intruding into the domain of the legislature and areas which are executive privileges. Such encroachments receive applaud from media largely because it provides the fodder for the prime time. The NGOs too give a standing ovation to such invasions by the judiciary, little realising the likely damage to the constitutional system in the long run.

Remedy without right

Last week, the Karnataka High Court directed the South Western Railways (SWR) to start night train services to Karwar from Bangalore. When the advocate for the SWR submitted that it would take ninety days to complete, the High Court observed that ninety days would be too late and directed to commence the services within thirty days adding that South India, especially Karnataka was ignored a lot when it came to train connectivity. Though such an order of the high court could receive accolades from the Southern State, it is infringement into the domain of the Executive. The Court is providing a remedy in a subject-matter and area over which it has no rights and stepping into the powers and privileges of the Ministry of Railways and the Railway Board.

Recently, the Supreme Court ordered that the Information Commissioners appointed under the Right to Information Act shall only be a person who is or has been a Chief Justice of a High Court or a Judge of the Supreme Court. The reasoning is that the Information Commissions perform quasi-judicial functions and hence such qualifications are required. First of all, the Right to Information Act provides for qualifications and procedure for appointment of Information Commissioners. When a competent legislature has made provisions, the ‘legislation’ by the judiciary is uncalled for. At the most, the Courts could step in if an area is ‘unoccupied by legislation’ or the provision is ultra-virus to any provision of the Constitution. Secondly, the logic for the ruling is erroneous. It is not correct to assume that only persons who are judges of superior courts have a judicial mind. Judicial mind is not a treasure or a very scarce commodity found in present and former judges of the high courts and supreme courts only. That people hold judges in high esteem is a different matter. Many even consider reports of commissions headed by retired judges as law, though such reports are not prepared by adhering to the due process of law and principles of natural justice. Through such judgements, the Courts, though unintentionally, are carving monopoly avenues of employment for former judges. That each and every law could be correctly and validly interpreted only by the former judges is unacceptable to a thinking mind. Persons with a good innings and reputable contribution in public and private services acquire the skills of to understand what is just, fair and equitable. Finally, the gamut of welfare legislations empowering consumers, women, children and citizens provide for “friendly courts” and non-adversarial jurisprudence. Hence, if the grievance settlement machinery consists of those who are not from the higher judiciary, it would facilitate more in achieving the objectives of such welfare legislations rather than subjecting the aggrieved to technicalities, procedures and niceties of laws to please the former ‘learned’ judges. I am not making a case for keeping out the law addicts, but only underscoring that appointment of former judges on such panels should be an exception, rather than the rule. Undoubtedly, the appointment to such quasi-judicial authorities should be through a fair, objective and transparent process. This does not mean that the issue gets resolved only if the appointment is done of sitting and retired judges and that too of the superior courts.

Fiat without accountability

This is not an attempt to belittle the courts and judiciary. The purpose is to understand that the intervention of the courts is needed to deal with injustice. Courts are better placed to arrest injustice rather than to promote justice. For the latter, we need the positive intervention of the Legislature and the Executive. If we feel that Courts can ensure social and economic justice, we are in a make believe world. Judiciary has come to the rescue of the aggrieved and the suffering. At the same time, the Courts are also used for profits by the litigants and the Bar and both mock at law due to delays in outcomes.

Coming to Goa, the order of the Supreme Court halting mining operations including the export of already accumulated iron ore deposits is neither a relief nor a solution. The interim order has not solved any problem. In fact, it has created new issues for the government and tensions between different stakeholders. The report of the panel under the chairmanship of Justice Shah, on which the order is said to be based, cannot be considered as a final and conclusive document simply on the ground that it is prepared by a former judge of the Supreme Court. The power of the order of the Supreme Court which has stalled legitimate as well as illegitimate economic activity lies in the constitutional recognition and the respect with which the legislators and the executive hold the highest court of our country. Realising this, the Supreme Court should take on itself the responsibility to break the impasse in the least time. Otherwise, this would be a fiat without accountability. If the newly elected Executive in Goa continues to approach it as a Congress v/s BJP issue, rest assured nobody will see the light even if we reach the end of the tunnel.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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