Indian judiciary is again in the news,as it was during the days in the early 70s when Indira Gandhi was very much making news. Mr.Kuldip Nayar,the veteran journalist has raised the issue of such a possible confrontation(Asian Age 30,April 2007) in the current-goings-on. Nayar in fact puts in so succinctly:just thirty years ago,to be exact on April 25,1973,three judges of the Supreme Court were superseded for the first time. To cut the story short,three judges were superseded because Mrs.Indira Gandhi was angry at the Golaknath case when the court held that the Fundamental Rights of the citizens cant be amended by Parliament.Just now I had finished reading the biography of Nani Palkhivala and as such I am reminded in so much detail as what was involved in that case and how it helped the citizens of this country to hold property in particularly as one of their fundamental rights.Then,came the Keshavanand Bharati case in 1973 when the famous interpretation of the definition of the Basic Structure doctrine of the Constitution was set out.These two cases also saw Palkhivala rise to his peak in his career.Palkhivala argued for days together and in a dramatic manner the court reached this brilliant interpretation.What is the basic structure is left undecided and that is how the basic laws evolve and we all know that our secularism,democracy and federal structure and even the fundamental rights are all the defining features of the basic structure.


Now,says Nayar,once again the supreme court is coming into its own when some such confrontation or confrontations are in the making.The instances are the recent ruling that the 9th schedule laws are also now subject to the court’s interpretation,where certain laws like 69 per cent reservation as in TN are likely to be open to challenge in the court.So too the recent stay of the OBC quota and also the current decision to hear the OBC quota by the same bench of two judges.They might refer the same to a larger bench.
Now,the issue is obc quota is a highly politicized issue, so crude,so blatant as to favour only the already rich and powerful politicians families and their kin,as the creamy layer is left out to benefit the same families that enjoy all the quotas in education like medicine and engineering and MBA courses as well as jobs like high court judges and high constitutional offices,all based on castes and quotas for certain castes classified as backward or most backward but in reality very rich and very powerful .The same castes don’t want their lesser placed kinsmen to come forward and become equal to them in the scheme of things.

Politicians have lately become so selfish,so corrupt that they have amassed so much unaccounted wealth,no amount of anti-corruption drives can catch them up and curiously these are also the states where they don’t want such institutions like lok ayukta created! TN is againa test case to see how the politicians make money and go about so brazenly so as to display the wealth as well.In they are helped in no small measure by the film world,by the tabloid press and as well as the TV channels,all often owned by the very same “back\ward” and “most backward”caste tag!
Such is democratic politics today.The worst case scenario can be seen again in UP and Bihar where anything goes in democratic politics.Criminalisation is a sought after tag.That only adds to the glamour of politics and public life there!
So,where do we go from here?In this highly criminalised,highly contaminated political culture?How safe is our democracy from the threats of this blatant criminalised,corrupted and mixed up politics of unaccounted big money of bribes,cash for services,from MPs who take money for asking question,to indulge in human traffic and also the film stars as MPs and companions to high profile politicians who mix politics and money making in such seamless manner.
The Congress and the BJP,being the two national parties are no paragons of virtues either.They have their own quotas of bad men and women.The regional parties are also now so powerful so as to make some of the critical national decisions so dependent upon their decisions.
One such is the coming Presidential elections.If the UP Assembly elections throws up a hung Assembly,then what happens?The Supreme Court today faces a new set of issues,not just interpretation of the Constitution arising out of some cases involving some unknown individuals like Golaknath or Kesavananda but also involving some constitutional functionaries like the state Governor or President of India.The recent such case in the Bihar Governor,Bhuta Singh when he prevented the Assembly to take oath and also the leaders of the largest party in the so constituted Assembly to lay claim to form a government.
In the present situation if and when the UP Assembly throws up such a hung Assembly and if like Bhuta Singh,the state Governor,no un controversial person either,refuses to administer the oath to the members,then the forthcoming Presidential election process may be delayed.In a very critical manner the political parties might be put to difficulties so as to assess their respective strengths and their respective strategies to explore the prospective candidates for contesting the Presidential elections.
Already the parties are talking in a very diplomatic manner,they all seem to say for record they would support the incumbent President for the second term.While they all know well their intentions are different!More so the Congress who saw in Kalam not a pliable candidate.He was not as obliging the party when he signed his mid-night signature to dissolve the Bihar Assembly.Though later the Supreme Court almost came to pass strictures,though finally it did so naming the state Governor,letting off both the Prime Minister or the President! Then,when for the second time the Congress wanted to throw out Mualayam Singh Yadav,the party found the President developing cold feet!So,the plan or strategy was abandoned mid-way to much embarrassment to Sonia Gandhi’s leadership skills!
So,this time around surely,the Congress would settle for its own candidate in the first place.Otherwise,it would explore to go with the allies,notably with the Left.The Left,unsurprisingly,already made it clear it wont support Kalam for the second term.In fact,it might put up the Lok Sabha Speaker,a great lawyer himself and a much admired senior member of Parliament.Chatterjee,himself has spoken against the apex court going what he considers to be beyond the limits ,he asked the judiciary in a written public lecture not to upset the equilibrium.The PM himself has cautioned the judiciary,by keeping the Chief Justice in his presence,not to go for “judicial overreach”.But then the Speaker of the Lok Sabha is the custodian of the rights and privileges of the Members of Parliament.MPs lately have been showing themselves in poor light.So,Chatterjee’s assertion might not find much favour with the elites and the middle classes,if not with the more discerning sections of the mass of people.So,too the rather weak assertion of authority by the PM.The Executive under him,again,is not a shining example of efficiency,transparency or above many devious and even corrupt practices. The members of the Cabinet have to win confidence by their selfless performance,not as keepers of the fiefdoms or dynastic heirs of this or that casteist parties.
All this doesn’t mean the Judiciary is all repository of wisdom.There is the new awareness for judicial accountability to the people.As on date there is a public disenchantment about the long pendency of cases and also the new element of perceived judicial lapses,including minor and not so minor allegations deviations from the correct judicial path.So,there are many issues and it is all ,finally,one of perceptions.Perceptions in all its many dimensions and configurations. Justice V.Ramasamy of the Suprme Court would stand as a dire warning as to what happens when punishment is sought and how punishment is escaped!But if we take a more broader and objective view of how the higher judiciary functions in advanced societies,in UK and USA,there are,in my opinion,many commendable features about the functioning of our judiciary and our Constitution,in the words of many eminent foreign jurists and even great men of thought like the political philosopher and classicist,Ernest Baker,our Constitution incorporates the best that was thought of by the Greek and Roman democratic and republican constitutions.
Even the British highest judiciary faltered as when the Labour government sought opinion to go to war in Iraq.The US Supreme Court has many political colours and also when the Indian Constitution and our electoral system are concerned the Americans felt ashamed of their institutions when George Bush’s first election was delayed and they thought our electoral process was much superior.

The Chief Justice of Indian himself has said that a minimum amount of such friction is good for a democratic Constitution!
So,where will all these likely frictions lead to?
One has to wait and watch!

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