By Kartik Lokhande
The
recent comment of Prime Minister Mr Narendra Modi has stirred up the
atmosphere especially in political, judicial, and activist circles.
Almost everyone is criticising the comment, apparently because it has
come from Mr Modi as an individual, forgetting that he is the Prime
Minister of India. In the cacophony of criticism, the point he wished to
make, and to which many common citizens would agree, has been lost.
Is
he the first person occupying a seat of power to have said this? The
answer to this question is ‘No’. Previously also, several of the
dignitaries and luminaries ranging from sitting or former President of
India, Prime Minister, to Chief Justice of India and Solicitor General
have said this. Though they did not use the term ‘five-star’ activists,
they often referred to perception-driven judgments coming from courts,
having direct or indirect influence of some or the other activist group.
In the recent past, the then Prime Minister Dr Manmohan Singh also had
cautioned about judicial activism and had said that there should not be
any ‘overstepping’ of roles. Dr Singh had stopped short of referring to
the influence exerted by the activists, on the judiciary; and Mr Modi
spoke about it boldly, that is the only difference between statements of
both.
No one, including the dignitaries cautioning against judicial
overreach, denies the fact that judicial remedies sought through Public
Interest Litigations (PILs) have served the nation and deprived
sections well. However, no one should deny the fact that in several
cases, the judiciary has been as fallible as any other system devised by
humans. Also, in several cases, there were judgments or orders that
created a complex set of legal contradictions. In many cases, verdicts
of lower courts have been set aside by the higher courts. If court
verdicts are supposed to be based on law and objectivity, how come this
setting aside takes place? In answer to this question lays the important
aspect -- influence.
How does this influence get created on
judiciary? In 2012, the then Chief Justice of India S H Kapadia made an
interesting observation in this regard, “What is judicial independence?
It is independence from politics. It is independence not only from the
legislators and the executive, but also from the pressures of organised
interest groups and popular sentiments. It must be borne in mind that
love for justice is rare -- what most people seek is justice which
favours them.” Here, the words to be noted are ‘from the pressures of
organised interest groups and popular sentiments’.
This drives home
the point that there are several organised interest groups that attempt
to exert pressure even on judiciary. Though not all the groups are like
that, some are out there to serve either anti-national interests or the
interests of ‘lobbies’ in the name of championing the cause of the poor.
Also, there are certain groups and powerful individuals who wish to
stoke popular sentiments to create an atmosphere that will have a direct
or influence on the judges or lawyers or petitioners or respondents or
all at a time. There are groups, whose members earn their bread and
butter through challenging every policy decision that will not serve a
particular corporate lobby. Also, there are trusts and NGOs and civil
society groups that wish to challenge every strategic move of the Armed
Forces or the Police machinery.
Here, one is reminded of an
interesting example quoted by T R Andhyarujina, former Solicitor General
of India, in one of his articles in a newspaper. The example pertains
to an order passed by the Supreme Court even in a military operation.
Following a court order, the authorities were required to prepare and
supply food packets to militants holed up inside Hazratbal shrine in
Jammu and Kashmir in 1993. The order had come following strong voices
raised in favour of ‘human rights and humanitarian needs’. The fact was
that the military had restricted food supplies to those inside the
shrine, as a matter of strategy to end the siege.
Of course, there
are other instances when certain kind of civil society groups, human
rights lobbies, and NGOs come together to exert their influence on
thinking of judges through hoarse cries in the media about ‘lack of
freedom’ particularly in case of activists who have strong connections
with the anti-national groups. Of course, security agencies commit
follies at times. But, taking advantage of this, these groups get served
through judiciary the interests of those using intellectuals for their
sinister designs.
For instance, in cases of activists arrested on
charges of having connections with Maoist terrorists, judges often end
up making statements like ‘possessing literature does not make one a
Maoist’, often overlooking the quantity in which copies of such
literature has been seized from the activists.
In one famous case in
which bail was granted to an arrested activist, the court made such a
statement ‘orally’, but the operative order stated, “We have heard the
learned counsel for the parties at very great length. Lest we should
prejudice any party. We are not giving any reasons for our order. We
however direct that the sentence on the petitioner be suspended, and he
be released on bail to the satisfaction of the Trial Court. The SLP is
disposed of.” The court that made the oral statements, out of sheer love
of sounding intellectual, may not be aware that those oral statements
are still being quoted in several other cases to pave way for release of
those arrested for having connections with anti-national forces.
One
may go on citing several such instances pertaining to mining, industry,
forest protection, etc. In his book ‘Court and Their Judgments’, noted
journalist-politician-author Arun Shourie has pointed out several such
instances. Knowingly, in many cases unknowingly, the human element in
judiciary gets influenced by the activists and gets itself tempted
towards activism. And, most of the times, the activists influencing the
thinking of judiciary are ‘five star’ or polished with ‘access’ at
‘right’ places nationally and/or internationally, for, such connections
add to their ‘influence value’.
Commenting on Shourie’s
above-mentioned book, legal luminary Soli Sorabjee had commented,
“Judges must ensure that PILs do not degenerate into publicity,
political, or personal interest litigation. Nor can every matter of
public interest be the subject of a PIL.” This makes the point of
influence on judges amply clear.
It is against this backdrop that
Prime Minister Mr Narendra Modi’s comments cautioning the judiciary
against getting influenced by ‘five star’ activists, need to be
welcomed.
(April 12, 2015. Published in 'The Hitavada' on April 13, 2015)
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