A strong judiciary may sometimes be a thorn in the flesh of the government or the political class, but in the Indian context, it has – barring a short dark stint during emergency – acted as pillar of the Indian state which celebrated its 67 Independence Day Thursday, eminent jurists say.
Despite lackluster governance, a not so effective and responsive administrative apparatus and a parliament that sees more disruptions than deliberations, if country still has a flourishing democracy then, to a large extent, the credit goes to the Supreme Court as eminent jurist Fali Nariman said: “The contribution of the apex court has not only been significant, it has been almost overwhelming.”
“It has been a movement forward with its ups and downs. The court faced testing times during the emergency,” said eminent jurist P.P. Rao, agreeing with Nariman.
In its journey to dispense justice, the Supreme Court took many innovative decisions. For the vast section of the populace that lives more in the denial of the basic necessities of life and for whom fundamental rights and the right to a decent life is not even a dream, the Supreme Court, way back in mid-1970s gave the gift of the PIL (public interest litigation), which has been employed by several public spirited individuals and NGOs to secure the rights guaranteed under the constitution.
“The very concept of PIL is an innovation of justices in 1970s and 1980s,” Nariman said, adding: “It has enabled a vast array of injustices to be remedied in public interest even though the applicants for relief had no locus standi to question such injustices.”
Another pivotal contribution of the Supreme Court is its expanding the scope of Article 14 (equality before law) and Article 21 (right to life) which now puts under the scanner the government’s functioning in every sphere of life.
Besides the PIL, Nariman said that the Supreme Court has “expanded the applicability of article 14 and article 21 of the constitution. Since the right to life under article 21 has been interpreted to mean not merely living but a good and healthy life, this has enabled the court to give all manner of directions to central and state governments to secure a wide body of citizens a better social and economic life than they could have achieved without court’s intervention”.
With a baggage of over 50,000 pending cases, including a number of matters required to be heard by the constitution bench pending for years, does it not reflect unfavourably on the apex court?
Absence of a backlog would be the ideal situation which everyone would like to see, but another eminent jurist, C.A. Sundaram, pointed out: “The problem of pendency is endemic to our judicial system, which has to merge on one hand the need of a free, fair and full hearing and on the other hand the combined effect of increasing litigation. Then, there is the paucity of judges and lack of sufficient increase in the judicial dispensation mechanism’s infrastructure.”
“Even so far as disposal of cases goes, the Supreme Court is as effective as is possible in the disposing of cases while at the same time ensuring that cases before it receive serious consideration that they deserve at the hands of the final court,” Sundaram added.
Admitting that apex court has not been able to deliver speedy justice, P.P. Rao put the blame at the doorstep of poor governance or lack of it.
“The court is unable to deliver speedy justice. Due to lack of good governance, an enormous burden is cast on the judiciary to dispense justice, which it unable to do quickly,” Rao argued.
Even though Supreme Court is largely elitist and getting justice is expensive, the real test of its success is how people view it differently from the other two pillars of state – the executive and the legislature.
“The faith the people of India, even today, in the age of disillusionment, repose in Supreme Court speaks volumes of its effectiveness” Sundaram said, underlining the contribution of the top court.
The political class, be it in power or outside it, has been constantly troubled by judicial activism as it believes that this amounts to judicial over-reach and encroaches on the domain of government and the legislature. This is event from the backlash to a recent judgment directing the unseating of elected representatives on their conviction in criminal cases.
Not impressed by the red flag raised by the political class, P.P. Rao said: “Judicial activism has done a lot of good to the country. There is a greater awareness of the rights and remedies among all sections of people. Even the weaker sections are hopeful of getting justice from the top court. There is effective control through judicial review of the exercise of power by the executive and the legislature.”
Notwithstanding that the Supreme Court has outperformed the executive and the legislature, Rao asserted: “The country urgently needs electoral reforms, administrative reforms and judicial reforms as suggested by the National Commission to Review the Working of the Constitution and other expert commissions and committees” to take things forward to the next desired goal.