Jurists' `prudence'
IT WAS recently that The Hindu ran a critical editorial on judicial `exuberance,' following the Calcutta High Court's `Single Judge' order banning processions on the city's streets during working days. The editorial went beyond its immediate cause to dwell equally critically upon the earlier judgment of the Supreme Court against `bandhs.' The Hindu followed up the editorial by liberally sparing space in the `Letters' column to publish the readers' reaction to its ideas. Except those of a minuscule minority, the reactions of the remainder were critical of The Hindu's stand on the issue.
A few facets of this scenario — insensitivity, practicability and confusion of implementation procedures, etc. — are of interest in a discussion on the matter. The genesis of the incident was the hold-up a Judge experienced on a Calcutta street due to a demonstration by a handful of people. Irritated, the Judge has his order passed swiftly. The reactions of the ordinary people are mixed — relief, satisfaction, cynicism, indifference and frustration, in varying measure. Protests by politicians against the Judge's `arbitrariness' follow and the higher judiciary freezes his order!
A majority of the reactions, presumably, were sympathetic to the Judge's order; indicative of the measure of misuse, by some, of a sacred `democratic' right, which causes inconvenience to the others in the majority. In western democracies, no way inferior to India's, street-flooding demonstrations of the kind here are rare and, when undertaken, are far more disciplined exercises and scheduled to coincide with weekends or holidays.
Implementation challenge
As the issue is debated on merit or otherwise, the pivotal point — its twin banes of implementation challenge and consequent impotence — must not be overlooked or ignored. Judgments like this are all right, but what of their promise and potential to be practicable? After all, the Judge's order was nothing new; in 1997, the judiciary came up with a similar judgment, to make demonstrations seem like regimented military drills: and the result — the strictures are flouted slyly, the police and other law-enforcing authorities are powerless before the political might and mischief mentality of the demonstrators. As `bandhs' become `hartals,' the man in the street has a hard time telling the difference between them, while he ends up cooling his heels at home, under both situations! A determined and virtuous step forward to sanitise society, thus, ended up as an ignominious stumble!
Why did the judiciary not know beforehand that laws by themselves are useless, unless they are, or can be, scrupulously implemented by the law-enforcing authorities? Of what use are powerful judicial edicts if they lack the teeth to gnaw their way through the thicket of executive ineptitude en route to implementation?
The verdict against strikes by government employees was also greeted by a fair section of the public as a deserving retort to the bureaucracy's and trade unions' wayward and insensitive ways. Whereas the recent strike in Tamil Nadu was decimated by administrative belligerence, that in Kerala last year fizzled out after a month for want of people's support and because of an unheeding executive. The face saving formula was the promise to consider grievances and demands when opportune, something which the employees were offered before they struck work. However, can popular opinion against unjust, frivolous strikes, now authenticated and sanctified by the judiciary, prevail? Won't the wily politicians find some way to wriggle out of the constraints of the verdict, as they have found, in other instances?
To be really effective in its functioning, it is time the judiciary introspected about how its seeming powerlessness to push ahead with its edicts strikes at the root of its credibility vis-à-vis the citizenry.
The metaphor of the `pillar' to denote the judiciary's as well as the executive's and legislature's roles in constitutional governance seems self-defeating. Each `pillar,' however strong or weak, tends to be isolated and independent of the others, causing poor coordination among them. What is of need is a framework, which binds all the wings of governance together, to enable them to complement their strength and to neutralise their weaknesses.
As the most revered of these wings, let the judiciary take the lead in ensuring this coordination so that prudence, relevance and esteem of all the wings are simultaneously safeguarded.
DEVRAJ SAMBASIVAN
Printer friendly
page
Send this article to Friends by
E-Mail
Open Page
