dna edit: The law in hindsight

Thursday, 2 January 2014 - 8:35am IST | Agency: DNA
The judiciary-executive stand-off over judicial intervention into the policy domain and political involvement in judicial appointments is unlikely to end soon.

The mutually suspicious, often difficult, relationship between the judiciary and the political class continued into 2013 too. For years, politicians have nurtured a grouse that judicial activism was constraining the representatives elected by the people through overreach into the policy and legislative domain. Ever since the Supreme Court’s decisive intervention in the CBI’s 2G spectrum scam investigation and the controversial ruling that scarce natural resources be auctioned, the executive and judiciary have been on a collision course. The executive’s response – law minister Kapil Sibal’s proposed judicial appointments commission (JAC) to replace the collegium system of judges selecting judges – has upset most judges but won support among some lawyers. But the crisis facing the political class – characterised by the simple inability to act ethically and massing up privileges unavailable to ordinary citizens – has caught the judiciary’s attention.

Like the civil society onslaught on traditional politics through the Aam Aadmi Party, the judiciary did its bit too. Its attempts to decriminalise politics through disqualifying convicted legislators and barring jailed netas from contesting elections, and to insulate CBI probes from political interference, was aimed at fixing systemic flaws. The Supreme Court’s memorable description of the CBI as the “caged parrot singing its master’s tune” vividly captured the helplessness of the CBI forced to investigate the wrongdoing of those who control its purse-strings and administration. The revelations that the CBI shared its draft status report, exclusively meant for the Supreme Court bench hearing the coal block allocation case, with the law minister, attorney-general, PMO and coal ministry officials damaged the UPA government.

With a history of such problematic interventions, Sibal’s opponents worry that the political domination in the proposed JAC would impinge on the independence of the judiciary. The judiciary often preaches a culture of transparency and openness from the Bench, but the 20-year-old collegium system’s procedures are cloaked in secrecy with allegations of bias occasionally surfacing. With a troublesome past of subversion of the seniority tradition in judicial appointments by Indira Gandhi who punished independent judges, the JAC-collegium debate could head for judicial review and stoke tensions if it becomes law. However, the biggest challenge for the judiciary were the demands to expedite and reform criminal trials in the aftermath of the December 16 gang-rape incident. Though the Supreme Court set up fast-track courts to try sexual offences, these courts were too few in number to reduce pendency and were more symbolic than effective.

The year ended on a disappointing note for progressive sections who looked up to the Supreme Court to uphold the Delhi High Court’s pathbreaking 2009 verdict decriminalising homosexuality.

By striking down the Delhi HC judgment that held Section 377 of the Indian Penal Code violative of the fundamental right to life, equality and liberty of homosexual citizens, the SC also upheld archaic ideas of public morality and legitimised a dangerous precedent of state control over the private lives of citizens. Other significant rulings included the provision of the NOTA (none of the above) option in electronic voting machines and the boost to cheap generic drugs by denying patent protection for Novartis’ cancer treatment drug, Glivec. In the trial courts, Lalu Prasad Yadav and Om Prakash Chautala were convicted in corruption cases; Sajjan Kumar was acquitted in a 1984 anti-Sikh riots case; and dentist couple Rajesh and Nupur Talwar were held guilty for the murders of daughter Aarushi and domestic help Hemraj. With its influence on national life increasing, the judiciary will now have to contend with greater scrutiny of its actions and judgments.


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