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Is India's judiciary that helpless?


The last few days witnessed two examples of pressure increasing on the judiciary to the extent of damaging its credibility and of judges being made helpless.  One was the expression of moral rage by Justice Arun Mishra, while talking about the government approach that nullifies even the Supreme Court's verdict in a cavalier fashion.   The instance pointed out by the judge was of the government's telecom department overturning a judgement - in its own favour -  to charge Rs 1.47 Lac crore from telecom companies. The telecom department's asking Accountant General not to force companies to pay up,  was a step that would virtually nullify the SC verdict.  A government official dares treat the court's order in such a belittling manner.   Justice Mishra even blurted out that he was not interested in living in a country where court orders are not enforced.

It was about the same time that Justice Dharmadhikari of Mumbai High Court implicitly stated the same thing.  He did not go to the extent of talking about leaving the country,  but instead resigned instantly from the judiciary.   Outwardly he cited family and personal reasons,  but he talked to the media about the pressures being made on him from government officers.  While observing that when the government failed in performing its duty, it will increase the pressure on the court, he also pointed out that if in earlier times even Mahatma Gandhi did not have to file public interest petitions,  today the public have to depend on the court for everything.  Justice Dharmadhikari spoke in the line that he was fed up talking repeatedly about the lackadaisical attitude of government officials.

He did consistently criticise the CBI and the Special Investigation Team (SIT) going unacceptably slow in properly probing the killing of Govind Pansare and Narendra Dabholkar and commented that " the state has been reduced to a laughing stock”.   Recently he also blamed the authorities for not taking actions against misappropriation of funds for welfare of schedules tribes by 123 officers.  If judges with loyalty and dedication feel anger and frustration,  its reason is clear:  under the onslaught of the 'executive' or the governing machinery,  the judiciary is becoming weak and helpless.  And that is an extremely serious situation.

When cases increase in number and millions of cases become pending,  the laxity of the government in appointing sufficient number of judges aggravates the problem.  But that is not the only reason for the erosion of judiciary's credibility.  It would not be an exaggeration to say that the courts themselves cause loss of credibility.  Hasn't judicial activism now turned into one of reconciling to the excesses of the government?  Despite the government holding the people in detention for months,  the courts are not able to do anything.   Even the court's own judgement that internet is a fundamental right has not been enforced in Kashmir.  Those in unlawful detention are not able to access justice.   By the time the habeas corpus petition for the release of Farooq Abdulla reaches the court,  the government made a mockery of justice by slapping National Security Act (NSA) on him.   And now Shah Faesal has also been crowned with the same charge.  

In the case of  Dr Kafeel Khan who was hunted unfairly,  although the court granted bail for him, the government did not release him.  Days later,  NSA was invoked against him too.  Even when the law and rules are so blatantly misused,  our judicial machinery is incapable of intervening in favour of justice.   The court which refused to stay actions until the Citizenship Amendment Act is reviewed, also failed to rein in governments that deny democratic freedom and human rights and suppress protests.

Dozens of people, who protested peacefully,  have been killed in police atrocities.   In Karnataka, sedition laws were invoked against female teachers just for staging a play criticising the government.   Children were subjected to gruelling  and intimidating interrogation in this connection several times.   In many states,  repression is continuing in a manner that does not go well with any civilized society.    When a court tells those seeking of justice  that it will hear them after they stop violence,  doesn't the court have the obligation to stop the government's violence?  And the country has now seen video footage of masked men beating protesters in the open, when the police remained mere spectators.

The nation also heard members of government saying in public that protests will be handled by guns.  The courts stopped short of responding to violation of laws by those in authority themselves,  but a court filed a suo moto case in the incident of a child falling sick and dying.   What is the message given by all this?  And the prestige of our judiciary has not at all been enhanced by several recent incidents:  the inappropriateness of transferring chief justice of Madras High Court Tahil Ramani to Meghalaya and her having to quit by resigning,  the manner in which the sexual abuse case against Ranjan Gogoi when he was chief justice of India,   the later exoneration of Justice Gogoi by the then Justice Bobde and the recent reinstatement of that female employee in service.

All these have only served to not correct,  but reinforce the notion that the law is a licence for those armed with authority and a punishment for the people.   It was only the other day that former justice AP Shah vehemently criticised some recent judgements of the Supreme Court.   At any rate,  corrective actions have to come before some black sheep of the judiciary and a pro-authority approach infect the whole justice system.  Ultimately,  the judiciary should be make itself subject not to not those in authority,  but to the people and the constitution.

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