Saturday 22nd Nov 2014
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UNNECESSARY WRANGLING

Judiciary

, by RAJINDAR SACHAR

Scenario of the Judiciary overstepping its power of Judicial Review and the sensitivity of the Executive in having its actions interfered by judiciary was again brought out sharply with the comment of Prime Minister when inaugurating the 17th Commonwealth Law Conference at Hyderabad. The broad approach of Prime Minister in this matter is not new (he has expressed it earlier also). But the sharpness and causticity this time was expressed strongly when he cautioned – “While the power of judicial review must be used to enforce accountability, it must never be used to erode the legitimate role assigned to other branches of the government.”
This notwithstanding that the government itself was quite happy to let Supreme Court supervise the CBI investigation in 2G Spectrum Scam, hoping it will deflect the demand of J.P.C.
Similarly the government is not opposing the matter of foreign accounts of Indians being enquired into by the Supreme so that it can avoid having to disclose their names to the public.
The sharpness, I suspect, may have been induced by what and I say with all respect, the uneven sharp attack on Executive by a sitting Judge of Supreme Court (Justice Ganguly) when attending a conference of lawyers on “Gender Concern in Conflict Zone” he said, “It was shocking to see how the government allows and appreciates such ministers. Not only that, and also gives them a Cabinet post. It is not a dignified act. I would call it a shameless act.”
The background as per press reports seems to have been that some time in December two-Judge Bench of Supreme Court (of which Ganguly J. was a member) had strongly castigated the action of Mr. Deshmukh (who was then the Chief Minister of Maharashtra and is now a minister in Central Government) in having stopped the police from entering an FIR against a moneylender relation of Congress legislator. This action of Deshmukh was certainly condemnable and Mumbai High Court had called it gross interference from the executive in shielding a private moneylender belonging to the ruling party. The Supreme Court had in their judgment justifiably rebuked Deshmukh saying the Chief Minister should not have interfered with the criminal justice system and this act was unconstitutional and had imposed a Rs. 10 lakh fine on the State Government. I fully appreciate the action of the Bench (though I would have thought that it would have been more appropriate if fine was imposed on Deshmukh personally rather than on State because it was the individual unconstitutional action of the Chief Minister – the State is a different personality).
The above action of Bench had been widely appreciated. But these strong and rather unprecedented observations from a sitting judge gave it a different contour and context more so when the judge was speaking at a seminar on a subject which had nothing to do with the impropriety of the politicians but was on a sober and important topic of gender justice. This was, and I say with respect, because many a time a sitting judge even if he is rightfully indignant during the hearing have been advised by elders to keep cool. There is no denying that in court many occasions arise when a normal person would lose his cool and feel like shouting but the hoary wisdom of great judges is always to try and put a restraining hand on oneself.
I remember an incident of Lahore High Court where a rather short tempered judge would go on interrupting the arguments of senior mild mannered lawyer by saying “Rubbish”. So the senior counsel, his patience at an end, kept his brief aside and very innocently addressed the judge, politely saying: “I hope your lordship is well because nothing but rubbish is coming out your lordship mouth.” The message was conveyed strongly though put in an apologetic manner. And even outside the Court, the sitting judges are expected to keep the same restraint on their language – may be unknowingly the Lachman Rekha was crossed in this instance. 
Lord Atkin had long ago given a friendly warning: “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”
Also judiciary could with some embarrassment be reminded of its own conduct in permitting judges against whom allegations of corruption are being enquired into, are still being allowed to sit in courts. 
But that is no reason why the great instrument of Judicial Review should be downgraded. Judicial Review is inherent in a written constitution. Wherever there is a written Constitution, the Supreme Law is the law of the Constitution and for even Parliament to accept that its powers are limited by the written Constitution is not in any manner to derogate from its sovereignty but only to accept that its sovereignty, like the sovereignty of the executive and the judiciary, is limited by the written Constitution. 
Politicians seem to think that the courts ought to give to all the Parliament’s decisions automatic seal of approval. But that would mean being false to the oath by the judge who can only uphold the lawful decisions, and cannot keep silent in face of illegality.
It also needs repeated reaffirmation that the mandate in the preamble of the Constitution “We the People” empowers both the legislature and the judiciary equally. The transit legislature elected for particular period cannot arrogate to assume the mandate of sovereignty of the people exclusively to itself. Humility in all three instrumentalities of the state and of recognition of their respective limited sovereignty will make it easier for the country to avoid any unnecessary collision.
[RAJINDAR SACHAR is former Chief Justice of High Court of Delhi]


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