Post KGB – Who runs the nation - Government or Supreme Court?

The Article Below is Originally Published in Bar and Bench.

Author: Raghul Sudheesh

Now that the Civil Society members are considering moving the Supreme Court against Anna Hazare’s arrest; it needs to be analysed who runs the country! Is the Supreme Court of this country the only saviour of the people? Have they lost faith in the Executive and Legislature? Is the mass support to Anna Hazare’s fight against corruption indicating this?

Was not bringing black money, protecting tribals, other workers, appointing the right person to the post of CVC, impeaching corrupt judges; the duty the Government? Why the Supreme Court Intervened? Was it Judicial Activism or Over Activism?  Post Justice K. G. Balakrishnan era, Supreme Court has seen a lot of path breaking decisions that opened up various controversies and scandals that is disturbing the current UPA Government a lot.

The Supreme Court Bench consisting of Justices B. Sudershan Reddy and S.S. Nijjar, based on a petition filed by Ram Jethmalani and others, constituted a Special Investigation Team (SIT) headed by former Apex Court Judge B.P. Jeevan Reddy to monitor the investigation and the steps being taken to bring back black money stashed away in foreign banks. 

To quote the judgment, it starts as: “Follow the money” was the short and simple advice given by the secret informant, within the American Government, to Bob Woodward, the journalist from Washington Post, in aid of his investigations of the Watergate Hotel break in”.

The Judgement of the Supreme Court in Salwa Judum case opens as following: “We, the people as a nation, constituted ourselves as a sovereign democratic republic to conduct our affairs within the four corners of the Constitution.” The Court came down heavily on the Chhattisgarh government and the Centre for appointing tribals as Special Police Officers (SPOs) and training them to counter Maoists and held the action to be “unconstitutional”.

The same bench in Black Money case comprising Justices B Sudershan Reddy and S S Nijjar said: “On the one hand the State subsidises the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to provide adequate cover to the poor through social welfare measures. On the other hand, the State seeks to arm the youngsters amongst the poor with guns to combat the anger, and unrest, amongst the poor.”

Another blow to the Centre was when the Supreme Court quashed the appointment of P. J. Thomas as Central Vigilance Commissioner (CVC). An Apex Court Bench consisting of Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Swatanter Kumar set aside his appointment pursuant to writ petitions filed by the Centre for Public Interest Litigation, the former Chief Election Commissioner, J.M. Lyngdoh, and others.

P. J. Thomas was appointed CVC pursuant to a recommendation made by a three member high power committee (HPC) headed by Prime Minister Manmohan Singh, even though the Leader of the Opposition in the Lok Sabha Sushma Swaraj, who was an HPC member, disagreed with the decision.

With Justice G.S Singhvi’s recent decision in the case of Delhi Jal Board Appellant v/s  National Campaign for Dignity and Rights of Sewerage and Allied Workers & others, the fight for the relevance of Public Interest Litigation India has taken a new pace altogether. The decision comes at a time when the Government is considering a bill to regulate PIL.

The Apex Court noted that the superior Courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution. The Court reminded that it is the duty of the judicial constituent of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity.

Coming down heavily on the corrupt and the well to do of the society, the Bench said “If the system can devote hours, days and months to hear the elitist class of eminent advocates who are engaged by those who are accused of evading payment of taxes and duties or otherwise causing loss to public exchequer or who are accused of committing heinous crimes like murder, rape, dowry death, kidnapping, abduction and even acts of terrorism or who come forward with the grievance that their fundamental right to equality has been violated by the State and/or its agencies/instrumentalities in contractual matters, some time can always be devoted for hearing the grievance of vast majority of silent sufferers.”

The year 2011 also saw Justice Dinakaran resigning from the post after it was almost sure that he will be impeached. The delay tactics adopted by him before the Apex Court also did not work out.

An Apex Court bench comprising of Justices G.S. Singhvi and Chandramauli Kumar Prasad ruled that former Sikkim High Court Chief Justice Diankaran’s knowledgeful silence with regard to P.P. Rao’s appointment in the Rajya Sabha Committee for a period of almost ten months, militates against the bona fides of his objection to the appointment of P. P. Rao as member of the Committee. 

Though the impeachment proceedings against Justice Dinakaran started on December, 2009, Justice K. G. Balakrishnan was very tolerant about Justice Dinakaran and offered a transfer to Justice Dinakaran in April 2010. I have termed this in my blog Stripped Law as ‘Judicial Kalapani’. 

Excerpts from the blog post are copied below:

“If he is unfit for the post in Karnataka how can he be fit for the same in Sikkim?? If the CJI cannot force a Chief Justice of a High Court to go on compulsory leave; to pave way for an enquiry; then what is the power of the CJI?

Why should Sikkim have to put up with someone who's considered unfit to serve anywhere else. Is it a judicial "KALAPANI?" And why is this considered a solution for the "piquant" situation - doesn't the law of the land hold true in the whole country. Are the citizens of Karnataka or Delhi more deserving of justice? One of the reason for the collegium's present decision is that only very few cases were being heard in that court, it was felt that Justice Dinakaran could be given judicial work there. What is the logic behind this reasoning? Does it really make any sense? The answer is a big "No" !

It is also a well known fact that Justice K. G. Balakrishnan was closely associated with former Tamil Nadu CM M. Karunanidhi.  A Headlines Today investigation has earlier found that former Tamil Nadu Chief Minister M. Karunanidhi misused his discretionary power and allotted two prime plots of land in Chennai to a former aide of Justice K. G. Balakrishnan. Documents in possession of Headlines Today show how Justice K.G. Balakrishnan's aide Kannabiran, whose monthly income was just around Rs 10,000, was awarded the plots, one currently costing Rs 48 lakh and the other around Rs 2.5 lakh. Also it’s a public secret among Madras High Court Lawyers that it was Karunanidhi who pressed for Justice K. G. Balakrishnan’s elevation to the Apex Court. Apart from Congress leaders, Justice K. G. Balakrishan was the only person, whom Karunanidhi used to meet regularly on his visits to Delhi. It’s also an interesting fact that nothing much happened in the 2G scam until Justice K. G. Balakrishnan was the CJI.

The biggest blow for the UPA Government came after Justice G.S Singhvi’s order in the 2G case which said “The CBI shall conduct the investigation without being influenced by any functionary, agency or instrumentality of the State and irrespective of the position, rank or status of the person to be investigated/probed.”

An analysis shows all these judgments have come at a time when the Government has failed at performing its duty or erred in doing that properly. In this background we have to see Anna Hazare and his so called fight against corruption. When the government fails, another group tries to emerge as a super power which is beyond all persons and questions. And now that Anna has been arrested and being put in Tihar Jail, the matter will again rest in the lap of the Supreme Court, to be decided at its mercy.

This way, it is being seen that for every other major issue plaguing the country, the Supreme Court is being sought out as the ultimate saviour. When this is the situation, criticisms against judicial activism as being manifestations of judicial overreach should be forthright shunned. This should be so, because of the analogy that, if judicial ‘activism’ is doing so much of good to the people of India, then why should it be considered an evil? And if it is so considered, let it be a necessary evil at the spate of this hour.

Further with Lawyers in Delhi as well as Punjab & Haryana High Courts joining the protest against arrest of Anna Hazare; indicates clearly that the Bar is also keeping vigilance against the undemocratic practises. Lawyers Social Responsibility has been shown through the protests. This will certainly boost the morality of Courts and we can expect more Judicial Activism in the coming days.

The current situation is so disastrous that for each and everything a Supreme Court intervention is needed, be it black money or awarding compensation to sewage workers and ensuring their safety. The question that arises at this crucial point is who is running the country? Is it the government or the Supreme Court?

A shorter version of the column is available in Firstpost.

Raghul Sudheesh is Associate Editor at Bar and Bench.  You can follow him on Twitter or Facebook.