Comment

Is it good news or bad news when the judiciary is in the news?When I wrote my last column, the Delhi High Court was being talked about for its controversial judgment jailing some Delhi journalists for contempt. Now it’s the Supreme Court for its orders banning a bandh in Tamil Nadu.

As you would expect, politicians cutting across party lines are agitated at a judgement which debars their tribe from agitating. But those of us who work in less exciting fields will be happy that the court intervened: on the face of it, banning bandhs is wrong because it interferes with a vital form of protest available to a political party and is, therefore, anti-democratic.

But, objectively, bandhs being coercive, deny fundamental rights to a majority of citizens (like going to work, earning a living, freedom of movement, going to school or college), and are, therefore, unconstitutional.

This decision —which, incidentally, is a reaffirmation of a High Court decision which is 10 years old — encapsulates in itself what is right and what is wrong with our judiciary.

The first part is obvious: the common citizen, helpless against the whims and compulsions of political parties, finds in the courts his or her last recourse to rationality. We go to court on a whole lot of issues, simply because there seems to be no alternative. But this very dependence of the citizenry on the judiciary seems to give it an attitude which sometimes seems arrogant.

How else can you describe what happened after the order banning the Tamil Nadu bandh? From all accounts, though the bandh was called off, because of the Supreme Court order, people were prevented from going to work or move about, and many shops and establishments were made to close down, actions which suspiciously sound like a bandh.

The court was upset, as you would expect it to be. But the judges didn’t initiate contempt proceedings as logical legal procedures would indeed have allowed them to; instead they made some comments on the breakdown of the Constitutional machinery of the state of Tamil Nadu and recommended the dismissal of the State Government and the imposition of President’s Rule.

You don’t have to be a constitutional expert to know that the Court was overstepping its jurisdiction, and further exacerbating its relationship with the legislature. Soli Sorabjee, former attorney general of India has suggested that this was an ‘off-the-cuff oral observation’ and should not be taken as ‘judicial encroachment’.

But anyone holding an office of public importance is expected to know that there is no such thing as an off-the-cuff remark. Even if it was an impromptu remark made in the heat of the moment, it betrays a certain arrogance.

There’s probably good reason for this. The arrogance is probably born of the well-justified feeling that neither the legislature nor the executive do the job they are supposed to do. But however just the arrogance, it leads the judiciary into areas that should clearly be outside its ken.

Here are a few of them, culled at random over the years: Supreme Court scuttles deal struck by State Government with Bandit Veerappan ; Bombay High Court sets 15 day deadline for filling up potholes; celibacy for zoo animals worries Supreme Court; petition against a kiss in Dhoom between Hrithik Roshan and Aishwarya Rai admitted for hearing (likewise kiss between Richard Gere and Shilpa Shetty); case against actor Khusboo’s ‘endorsement’ of pre-marital sex; Ravi Shastri eating beef though he is a Brahmin objected to and case admitted; court interventions in the results of the National Film Awards and India’s entry to the Oscars …..

No case, it seems, is too trivial for our courts to entertain as long as there is an important personality involved. In the meantime, lakhs and lakhs of cases pile up in our courts, and thousands of undertrials wait in jail for justice.

Isn’t something wrong here? And doesn’t the judiciary itself need to do something about it now?