5th January 1997

Those who are above the law

By Manoj Mitta

Judges as public crusaders cleaning up the system have won all-round public applause. Political corruptlon, police excesses, environmental degradation. Turning the spotlight on all these vital issues, the judiciary has, in recent years, held the mightiest in the land to account. But are the men who have delivered these hard-hitting judgements, themselves accountable to the public?

This question was raised last month when the Supreme Court refused outright to entertain a public-interest petition challenging the appointment of a judge with a dubious reputation to a high court. Filed by seven Chennai lawyers, the petition alleged that the judge in question, S. Marimuthu of the Tamil Nadu district courts, had been indicted twice for misusing his judicial office to grab a property by the high court Ñ the very court to which he was now being appointed as a judge.

The Committee on Judicial Accountability (CJA) got activated and six leading Supreme Court advocates - V.M. Tarkunde, Shanti Bhushan, Hardev Singh, Ram Jethmalani, Indra Jaisingh and Prashant Bhushan - submitted a representation to Chief Justice A.M. Ahmadi, opposing Marimuthu's appointment. Far from being promoted they said, Marimuthu should face disciplinary action as integrity was "the most essential, though not expressly laid down, qualification" for becoming a judge.

But the Court dismissed the petition on the ground that judicial appointments were beyond the pale of judicial review. Coming as it did amid the euphoria over the judicial crusade against corruption, this rejection took legal circles by surprise. Particularly as the bench was headed by none other than Justice J.S. Verma who has been at the forefront of judicial activism and will take over as chief justice next year. As CJA Secretary Prashant Bhushan put it: "The Marimuthu decision is contrary to the spirit of activism as the judges are not applying to themselves what they have been preaching."

A close scrutiny of recent judgements does indeed reveal a disturbing trend of the increasing immunity of the entire judicial system. The decision in the Marimuthu case, for instance, was based on the judgement delivered in the historic Judges case of 1994 that radically altered the system of judicial appointments. Delivered by Verma himself, the 1994 judgement held that the executive will no longer decide judicial appointments; the responsibility will rest with the judiciary alone. The petition against Marimuthu was, in a sense, the first test case for the two-year-old arrangement. As senior Supreme Court advocate C.S. Vaidyanathan, says, "It has only driven home the message that the judiciary has acquired primacy without any corresponding accountability."

Besides control over judicial appointments, the apex Court has, in recent years, gained more authority in matters concerning the discipline and removal of judges. In 1992, when there was a move to impeach the controversial Supreme Court judge V. Ramaswami, the Court ruled that even the impeachment process Ñ which the Constitution has vested only with the legislature Ñ was subject to judicial review. It is, as Vaidyanathan says, "part of the trend of the judiciary organising itself into an exclusive club which does not let anyone peep in."

At times, the powers appropriated by the judiciary appear to violate basic democratic rights. The ban on public demonstrations against judges accused of corruption or misbehaviour for instance. Early this year, the Court passed this order in the case related to a former chief justice of the Mumbai High Court, A.M. Bhattacharjee, who was forced to resign following a lawyers' agitation and allegations of corruption.

Apart from orders that have made the judiciary more insular than ever, there is an alarming tendency of the apex Court to override existing laws. Take the case of the Bar Council of India chief, V.C. Misra. In March last year the Supreme Court stripped him of his licence even though the law lays down that only the Bar Council has the authority to award or revoke licences. The Court asserted that no law could come in the way of its "inherent" power.

Similarly, the judges have given a new dimension to their power to punish anybody found guilty of committing contempt of court. The maximum sentence the Court has ever given for contempt under Article 129 is six months, which is also the statutory limit. But in a contempt case against Superintendent of Haryana Police M.S. Ahlawat, the apex Court in January this year not only imposed the six month sentence but it also gave a concurrent sentence of one year on the charge of perjury. What made this all the more shocking is that Ahlawat was punished without being tried for perjury. His counsel Harish Salve now says: "I normally do not comment on a case I have appeared in but this is too glaring a violation of the due process to keep quiet. It is simply an abuse of the contempt power."

Another major instance of judicial aggrandizement has been regarding the President's power to dismiss a state government under Article 356. The earlier approach was that an Article 356 proclamation was essentially a political exercise, with imponderables not amenable to judicial adjudication. But in the landmark Bommai case of 1994, the Court assumed the power to examine whether the material on which the action had been taken was "relevant".

THE radical changes in the Supreme Court's interpretation of the Constitution has had several repurcussions. Consistency has been one obvious casualty. Warns Delhi-based advocate S. Muralidhar: "The shift in power is unhealthy because public policy now hinges on the perception of individual judges. Each would have the freedom to translate his personal philosophy without any accountability to the people."

As a result, in the same Court, some benches are overtly enthusiastic about public interest litigation while others are either indifferent or sceptical about its efficacy. The common man may well ask if the Jain Hawala case would have had its dramatic impact but for the accident of landing before Verma's bench. The case was after all pending for over a year before the bench of the then chief justice, M.N. Venkatachaliah. Or take the Delhi pollution case, which just forced the closure of some 168 polluting industries with more to follow. Why did all this action take place only now when the case was actually filed way back in 1985? Is this not due to the drive of one man, Justice Kuldeep Singh, rather than the entire judiciary?

Armed with greater constitutional powers than ever before, the apex Court has taken over many administrative functions as well. Such as telling a city corporation to remove garbage. Or ordering slum dwellers off public property. Or even giving the go ahead to beauty pageants. But as Salve points out "the public's expectations from the Court are now so high that it is scary." And ultimately, as it becomes clear that the judiciary cannot be the quick fix for all problems, the public will be disenchanted.

But even more worrying is the utter lack of accountability in the system of judicial appointments. In the Marimuthu case for instance, the chief justice of the Madras High Court cleared the promotion despite the two judgements indicting Marimuthu, thus inviting the charge of double standards. Even otherwise, the chief justices have no means of assessing the integrity of judicial candidates. When the executive was responsible for such appointments, the intelligence machinery was used to make background checks of all candidates. This is no longer the norm. Not surprisingly, lawyers continue to grumble about the quality of judicial appointments.

If the judiciary is expanding its powers, it is at the cost of the legislature and the executive. In the process, it is upsetting the fine system of constitutional checks and balances. The public may applaud certain judgements but legal experts warn that there is a downside to judicial activism. As former additional solicitor general Santosh Hegde says: "Things are so bad today that any and every approach adopted by the courts is applauded. But the damage suffered by the checks and balances of our Constitution makes me apprehensive about tomorrow."

The political response has been hampered by the never-ending series of corruption cases. All proposals to hold a special parliamentary session on judicial activism or amend the Constitution to rein in the judiciary have fallen through. The most recent proposal is to make an amendment which takes politicians out of the ambit of the anti-corruption law. It is a move designed more to save political skins than to restore the constitutional balance.

Meanwhile, with politicians too busy practising the art of survival, the judiciary can only grow more powerful. Through the 9Os the legislature has been fractious and the executive weak, paving the way for the judiciary to play an activist role. But in the midst of all the public applause, the dangers of an all-powerful judiciary cannot be overlooked. For it is easy for the judiciary to be above the law. They simply have to re-interpret it. -India Today

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