Saturday, December 2, 2017
Coming straight to the crux of the matter, let me begin by first and foremost pointing out that Prime Minister Narendra Modi on November 26, 2017 stressed the need for the judiciary, Government and executive to strengthen each other and work together for a new India.
However, the Chief Justice of India (CJI) Dipak Misra emphasized that judiciary has a Constitutional duty to interpret and enforce a policy or law and apply “judicially manageable standards” to assess if a policy of the Government be interfered with. CJI has a valid point and it is a fact that judiciary has always taken care not to step into the terrain of the executive unless and until it is absolutely the crying need of the hour!
While craving for the exclusive indulgence of my esteemed readers, let me also inform them that while speaking at the Law Day function organized by the Law Commission of India, both PM Narendra Modi and CJI Dipak Misra did agree on one point that to maintain balance between the three wings of the State, there should not be any claim to supremacy. The commendable restraint exercised by the judiciary can be gauged from one glaring but never highlighted fact that the first Prime Minister of India Jawaharlal Nehru created a single bench of high court for such a big state like UP (which has maximum population, maximum MPs, maximum MLAs, maximum Judges, maximum pending cases, maximum crime, maximum districts, maximum towns, maximum villages more than one lakh and what not) at Lucknow which is so close to Allahabad just about 150 km away and that too way back on July 1, 1948 but not at any other place! Seventy years have lapsed since independence but not a single bench of high court has been added till now in any hook and corner of the state by any Prime Minister till now!
This despite the fact that Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi had recommended the setting up of 3 high court benches at Agra, Dehradun and Nainital but not a single bench was approved for UP even though the hilly people of UP which is now a separate State called Uttarakhand had to travel thousands of kilometers all the way to Allahabad to attend a single hearing as there was no high court bench either in the hilly areas nor in West UP! What more raw discrimination can be on display than the irrefutable fact that on the recommendations of Justice Jaswant Singh Commission, a high court bench was created for Maharashtra at Aurangabad, at Jalpaiguri in West Bengal and Madurai in Tamil Nadu! But did judiciary interfere? The answer is a “resounding no”!
The former UN Secretary General Ban ki Moon had slammed UP as “rape and crime capital of India” and here too maximum crime, maximum killings and maximum riots all take place in West UP still not a single high court bench here! Even former PM Atal Bihari Vajpayee in 1986 had demanded high court bench for West UP in Parliament but 31 years later still no bench! The 230th report of Law Commission recommended creation of more benches in 2009 but even as 2018 is about to start only one state Karnataka has gained as 2 more benches were approved for just 4 and 8 districts at Dharwad and Gulbarga even though it is a peaceful states with pending cases in high court not exceeding 2 lakh but in UP where pending cases exceed 10 lakh we see only one high court bench at Lucknow! Is this fair?
Why West UP which has more population than any other state except Bihar, Maharashtra and UP of which it is itself a part and accounts for more than half of the pending cases of UP yet has no high court bench here and litigants are compelled to travel whole night often without reservation all the way to Allahabad as there is no high court bench in any of the 26 districts of West UP? Why Bihar has not even a single high court bench which is again notorious for lawlessness and 3 or 4 benches for states like Assam, Maharashtra, Karnataka among others? West UP area is 98,000 square km and that of Bihar is 94,000 square km yet Bihar has high court but West UP not even a bench! The high court and benches of 8 states and above all Lahore high court is nearer to West UP as compared to Allahabad!
Why has Centre utterly failed to do anything on this score? Why Justice Jaswant Singh Commission landmark recommendations for creating 3 high court benches for UP were disregarded due to which lawyers of West UP started striking every since May 1981 and even went on strike not for 1 or 2 or 3 but for more than 6 months from July 2001 onwards and for a month in 2010 and for 3 months in 2014-15 apart from many other strikes for many weeks together? Why UP has more population than Pakistan and is 5th largest in world in population and areawise also is bigger than many states put together yet has just one high court bench created by Nehruji in 1948 but no PM even 70 years later cannot dare to create a single bench anywhere else in 2018? Why Allahabad High Court has completed more than 150 years of existence and is among the biggest court as also oldest in whole of Asia yet has just a single high court bench at Lucknow and nowhere else? Why Yogi Adityanath as MP had demanded creation of bench in Gorakhpur in 1998 but even in 2018 we will see no bench? Why high court and a single bench both in Eastern UP but no bench anywhere else either in West UP or in Gorakhpur in Bundelkhand at Jhansi or anywhere else? Is this not the worst case of violation of the fundamental right to equality as enshrined in Article 14 of Constitution? Why BJP leaders are getting murdered every second day in different parts of West UP still no high court bench is being set up here in any of the 26 districts?
Anyway, coming to main subject, Modi while putting it succinctly said that, “We know our individual strengths and weaknesses. It is not a question of proving who is superior as every decision or step taken by each wing affects the life of common man. The question we need to ask is whether as members of one family, do we work to strengthen and support each other in realizing the common aspirations of all citizens contained in the Constitution or not”. Asserting that the Indian Constitution is as vibrant as possible, and even more sensitive, Modi said the Constitution is accountable, competent and sacred and has kept the spirit of democracy alive. Why people of West UP are being punished to travel whole night without reservation many times more than 700 km all the way to Allahabad as there is no bench in West UP but only in Lucknow? Why people of West UP are not being given speedy and cheap justice at doorsteps by setting up a bench here?
Hailing the makers of the Constitution, Modi said, “It was not easy to make a historical document which binds a country which has more than a dozen sects, more than 100 languages, and more than 1,700 dialects and people living in places with various beliefs.” Modi also called for judiciary to ensure that nobody rises above the law. He said that, “Nothing is above the law. The law itself lies in the power of the king and the law enables the poor to fight the mighty weak. While on the same mantra, our Government has also worked out new laws and dismantling old laws to Living the Ease of being.” I fully appreciate this landmark step of dismantling old laws and working out new laws but why can’t similarly old benches at places not required or at the very least establishing new benches at places where required like in West UP, Bihar, Western Odisha and many other places not carried out not even in any one place even as Modi is all set to complete 4 years in office? Why no action is being taken on this score inspite of 230th report of Law Commission of India strongly recommending so?
Referring to the President’s concern regarding the judiciary, Modi also made the case for equitable representation in the judiciary. He said that, “Yesterday, the honourable President also expressed his concern that there was a nervousness in coming up to the court for poor justice. The result of all our efforts should be that it is not frightened by the poor court, and the justices at the time and the procedures of the court are also reduced.” Claiming that the balance between the judiciary, legislature and executive has been the backbone of the Constitution, Modi said legislature, executive and judiciary should keep in mind the decorum dictated by the Constitution.
Union Law Minister Ravi Shankar Prasad severely criticized the judiciary for failing to be accountable by stalling reforms in judicial appointments and hampering development by entering policy making spheres of Government and thus violating the golden rule of separation of powers. The CJI Dipak Misra countered this by saying that, “All wings of the State are bound by the principle of constitutional sovereignty and there should not be any claim to supremacy by any wing. I assure everybody that Constitution never envisaged what is not judicially manageable standard. There are instances where we have refused to entertain PILs as we felt judiciary cannot dictate Government on policy matters. But when policies are framed, we have a Constitutional duty to interpret it and enforce it.”
What bigger proof is needed than CJI himself asserting that judiciary has refused to entertain PILs as it felt judiciary cannot dictate Government on policy matters. But the moot question is: Why Centre takes no action on several key issues like setting up more high court benches in big states like UP notorious for worsening law and order where even foreigners are attacked as a Swiss couple was attacked in Agra and a 100 year old woman was brutally raped in Meerut! Why Prasad who in his first tenure as Law Minister had favoured the creation of a bench in West UP has maintained a stoic silence on this in his second term? Why he can’t even set up one bench even in his own lawless state Bihar when UPA’s Law Minister could manage to set up 2 benches for just 4 and 8 districts?
Referring to the National Judicial Appointment Commission (NJAC) case where a Constitutional amendment for appointing Judges was struck down by the Supreme Court, Prasad pointed to a High Court Judge sent to jail for contempt of court. He said this showed the quality of Judges selected by the Supreme Court Collegium and urged the need for an “audit” to ascertain what the country has lost in the process. But what about increasing criminals finding entry in Parliament and State Assemblies? Why no step taken to stop this open mockery of democracy?
Why those bunking sessions of Parliament and State Assemblies are not deprived of their status as MP or MLA or at the very least why their salary is not deducted? Why politicians are allowed to contest from jails even though no one can vote from jail? Why no step is taken to bar those MPs and MLAs who resort to unruly scenes in Parliament or State Assemblies?
Why when a single false complaint also can bar a person from applying in any government job then why can a person after indulging in dacoity, killings, rape, murders etc can still enter Parliament? Why no check imposed on politicians? Why politicians alone are empowered to decide their own salary and increase it as much as they want and whenever they want with no checks and balances?
Why no change is being initiated on this count? Law Minister must very seriously introspect on all this before lambasting judiciary! Why even dacoits and rapists can become MPs and MLAs very easily after labelling charges as “false”, “fabricated” and “politically motivated” while imposing very high standards on other government servants like IAS, IPS, Judge or Army officer or even a soldier or a clerk when even a false FIR eliminates all chances of securing a government job? Why this worst discrimination? Are politicians above the law? Why then are they given exemptions everywhere? Why no transparency in political funding and why political parties are exempted from disclosing from where all they got funds and how much when others are all mandated by law to do so? Are politicians above law? If not then why are they treated so?
Ravi Shankar Prasad said that his office cannot remain merely a “post office” to forward names of Judges forwarded by Collegium. The CJI differed sharply saying, “We never imagined nor regard office of Law Minister as a post office. We never ignore his views and many times out of mutual respect do not reiterate our recommendation acting on the views he sends…There may be certain occasions where orders are passed by Supreme Court under Article 142 (to do complete justice). But things are done and rectified later on.” What CJI is saying has a point.
It is a fact that Gopal Subramanium who was a former Solicitor General inspite of being recommended by Collegium was rejected by Government on IB report which is no basis for rejecting anyone’s name! There are many more such unreported cases! Can anyone deny this? CJI further went on to say that, “Many things we have accepted with mutual respect. We are absolutely conscious where we can intervene and where we cannot. One institution should not claim supremacy over the other.”
Acting as the peacemaker on the occasion, PM Modi said that, “We must strive to work together to strengthen each other and understand problems facing each other. The balance of the three wings is the backbone of our Constitution. This is the reason that despite Emergency we have maintained on the path of democracy.” He also emphasized on the Indian Constitution’s important role in the country’s overall development after independence and said it has withstood the test of time.
All said and done, PM Modi is absolutely right that all 3 pillars must work together for new India. New India is possible only if more high court benches are set up as recommended by 230th report of Law Commission of India especially where law and order situation is very bad like UP and Bihar which occupy first and second position in terms of crime and murders of persons yet Bihar has no high court bench and UP has just one bench and West UP which accounts for more than half of pending cases as was testified by Justice Jaswant Singh Commission has not even a single high court bench even though it recommended the setting up of 3 high court benches! Why is Law Minister inspite of coming from Bihar taking no steps in this regard? Can he please explain?
When Law Minister from Karnataka can create 2 more benches for Karnataka despite one being already at Hubli then why is Prasad from Bihar sitting quiet? Can he again explain? Can Prasad explain why since last so many years more than half of posts of Judges were lying vacant even in High Courts like Allahabad and Calcutta and the latter had even rapped Centre for it?
On a concluding note, before blaming judiciary for all ills, politicians must introspect and remember that when you point one finger at other you are pointing three fingers at yourself! Who is stopping Prasad from creating more benches and why no benches created in last 3 to 4 years inspite of his government enjoying brute majority in Parliament? Can he again explain? Every organ of the state should remain within its space, respect limits and do its duty under the Constitution as the PM Modi very rightly emphasized also while stressing on balance of power between 3 pillars who must all work together for new India!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.