Tuesday 24 May 2022
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Evenhandedness Is Key

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If you cry ‘forward’ you must be sure to make clear the direction in which to go. Don’t you see that if you fail to do that and simply call out the word to a monk and a revolutionary, they will go in precisely different directions.

— Anton Chekhov

The good rule sufficeth them, the simple plan

That they should take, who have the power,

And they should keep who can.

— William Wordsworth in “Rob Roy’s Grave”

[dropcap]I[/dropcap]s the principle and intent: that of even-handed, non-biased governance, worked through the assiduous separation of the Executive, Legislature and Judiciary, being served by any of the above in India today? Have they not all been carrying on most interchangeably and incestuously instead, particularly through the interminable years of the Indian National Congress or Congress-led rule?

The Sarkar has rarely needed the Constitution to have its way. And are they not, all three wings of government, delivering a performance, individually and collectively, much below expectations? Acche Din is not easy to usher in for the lotus party, though there is no dearth of keechar.

So, we can’t help being startled and embarrassed when a principle is called to account by manipulators in this unprincipled land, and must be forgiven for being sceptical. Or are these just common or garden turf and bailiwick battles, a pull me-push-you game, that we are forced to witness? A tussle for power and influence, brazenly naked, and equally craven!

The people, it would appear, do not come into it. Its ‘vote and get lost’ for us — no more and no less. The Sarkar, in every nerve and sinew, is into self-aggrandisement, so why don’t we be good chaps and get out of the way? So as not to inflict emotional and information overload, that too of unbearable negativity, let us just perambulate through a few thoughts on our august judiciary here.

Are Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, who rejected the NJAC Act and 99th Constitutional Amendment, just playing collective Becket to their members’ only church?

Would the NJAC appointment of judges, desired by Parliament and half the state Assemblies, become quite the ‘web of indebtedness’ claimed by the justices? Or would it breach deep dark secrets of the higher judiciary? The four arrived at the same conclusion individually 4:1 in their 1,000 page-plus judgement. But are they right? Now, I guess, we’ll never know.

However, if we look at it squarely, Justice Jasti Chelasmeshwar, the 5th judge on the Bench, dissented strongly. He suggested keeping the government out entirely from the selection of judges was “undemocratic”, and the collegium process lacked “transparency”. He cited the rejection of certain names under the collegium system in the past, with no one, except the chief justice with access to the files that recorded the reasons why.

But let’s beg the question a little. Would it really have been such a terrible, unacceptable dilution of judicial independence in reality? It looks very much like the judges voted for themselves, straight-faced and unabashed, employing flowery language to mask their steel.

But when a stalwart of the government, Finance Minister and senior lawyer Arun Jaitley called the judgement “the tyranny of the unelected”, a lawyer, one Ankit Goel, hopefully no relation, filed a case accusing him of “sedition”, in the obscure Mahoba civil jurisdiction under the Jhansi district in Uttar Pradesh!

The supreme judiciary of this country in its wisdom has deliberated and decided to cock a snook at Parliament. They have ignored the many shortcomings in their collegium system, in situ, along with their buried skeletons, for 22 years past; perhaps thinking being obligated to each other makes for fairer judgments, at least on themselves.

Chief Justice HL Dattu and his flock have achieved a defiant first in rebellion, circa 2015. The Supreme Court is upholding the guild, dressed up as principle.

Before the verdict [Graphics: The Hindu]
Before the verdict
[Graphics: The Hindu]
The judges that struck down the NJAC Act and 99th Constitutional have, to mask their triumphalism, mildly asked for suggestions and comments to tweak the workings of the collegium. But this is all about the present lot.

Others who have occupied Dattu’s high chair in recent times have been tainted by more bazaru allegations of corruption and graft, promptly hushed, shamed and covered up by colleagues on the bench, not above a little naughtiness themselves.

Morarji Desai’s law minister, Shanti Bhushan, somewhat less credible after his early support to the AAP, sensationally named eight out of 16 chief justices corrupt, in 2010.

But from street level, these allegations are impenetrable, probably just the way the collegium likes it. After all, it selects not only the Supreme Court judges, but also those in the high courts, and therein lies another set of skeletons that could rattle.

But let us see how the judiciary, particularly the higher judiciary, conducts business as it affects real people. Justice in this land is far from blind. The question is, does it deliver justice or its travesty?

Cringe-worthy question: Why does the Allahabad High Court — yes, it seems to do it more often than any other — order demolition of dozens of high rise towers, fully built and some occupied, in Noida?

Those high rises may have been built illegally or in violation of some laws but have been bought and paid for by hundreds of unwitting buyers. But, Uttar Pradesh’s high court judges seem more concerned with the majesty of the law, or what else?

They don’t indict the corrupt officials making it all possible over a length of time, these people from the state’s executive that colluded in letting them be built, nor the legislators that enabled the acquisition of the land, nor the political authorities that ordered it.

They blithely hit the builder whose money is in those towers, and the hapless buyers who have bought in and others who have begun to live in them.

The justification? The courts of law can only take cognisance of something once it is put in front of it.

In under the auspices of the late chief justice YK Sabharwal, whose sons worked in real estate, and allegedly weighed in, per a very interesting Mid-Day exposé in 2007. Thesupreme court ordered the MCD to seal, and its bulldozers to knock down perfectly good malls built on Lal Dora land.

Yes, the mall builders took advantage of a fuzziness in the law on what can and cannot be done on Lal Dora land. But nobody spoke up while they were going up over a period of a couple of years. And many people were allegedly paid off.

Nevertheless, these malls were well designed and built to the finest specifications, by class one contractors. But because they were built on the edge of Sultanpur village, off the Mehrauli-Gurgaon road, supposedly outside the purview of the MCD, but evidently not of the Supreme Court, they were targeted.

And the Supreme Court ordered them to be pulled down.Then, not to look partisan, it went even-handedly down the ladder.Emboldened perhaps by past successes, such as the coercive introduction of CNG in public transport and no public broadcast mikery after 10.00 p.m.,it called for the destruction of every “misused” shop, “flagrant violation” of a showroom, “rampant commercialism” of an office in the wrong place and “encroachment” prone and overbuilt home.

At an estimate it involved 294 of ’s 300 districts in 2006 because they all contained numerous such violations of the law.

The orders were to “raze” every illegal structure to the “ground” and prosecute all the colluders. Just so that there is no mistaking of judicial “will,” the Supreme Court was rumoured to be working on ways to strengthen the contempt of court law! But the aggression and uncharacteristic zeal, time did tell, was due to the rich and influential hand of the “legal” mall builders lobby.

Or is this a kind of judicial dividend brought on by a bigger payoff to the judiciary rather than to the executive? Did the events of 2006 in illustrate the might of an independent judiciary or a sad subversion of justice?

And helplessness. Were the small traders in Ghitorni, their shops and livelihood suddenly shuttered, going to riot? Were urban villagers going to stop traffic?

For the Indian judiciary, with 30 million or more cases pending adjudication, feeling “above” the law is extremely cynical, surreal,and decidedly perverse.

Meanwhile, picture ’s estimated 3 million slum dwellers relieving themselves in open nullahs and meditating upon progress, capital ishtyle.

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Gautam Mukherjee
Gautam Mukherjeehttps://www.sirfnews.com/
Commentator on political and economic affairs

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