Commentary/Mani Shankar Aiyar
Politicians will hold the judiciary in respect and awe only when the judiciary shows itself to be totally indifferent to the siren call of tomorrow's headlines
Not surprisingly, the public loses interest before the actual
trial begins. Indeed, much of the public looks upon a trial after
remand as a form of double jeopardy -- and, therefore, not acceptable
in terms of natural justice. Thus, the same Tamil public that
was baying for Jayalalitha's blood is now persuaded that she has
paid the price of her sins by being stashed away in judicial remand
for a few weeks.
The insistence on jailing her before trying her
has only given her the opportunity of returning to the political
arena and clawing her way back to office. Yet, what should be
the true ends of stern justice -- remand for a few days or conviction
with an adequate sentence?
If judicial activism were to focus on itself, instead of grabbing
headlines by focusing on the shortcomings of others, our judges
would see that there is no more effective way of dealing with
political corruption than instant, continuous hearings leading
to immediate convictions -- or exoneration, as the case may be.
That is the way there will be political consequences to judicial
decisions.
My objection, then, to the version of judicial activism to which
we have been subjected in 1996 is not that it is targeted on politicians,
but that it lets politicians so easily off the hook by making
the issue judicial remand instead of expeditious prosecution.
I also charge judicial activism with playing to the gallery by
focusing on out-of-office politicians.
Why, for example, is the
CBI not being hounded to file charge-sheets against Karunanidhi
in respect of the well-documented charges against him levelled
by the Justice Sarkaria commission of inquiry? Or even in regard
to the heinous charge of being an accessory both before and after
the fact to the murder of EPRLF leader Padmanabha?
If judicial activism descends, as it has tended to do, to merely
becoming part of the national pastime of politician-baiting, our
corrupt politicians are neither going to get their just desserts
nor is our politics going to get any cleaner. It is not in scoring
points against the executive or showing up the legislature that
the judiciary can best do its duty by the rule of law.
It is by doing what is entirely within the province of the judiciary to
do that the cause of justice will best be served: ensuring continuous
hearings and expeditious verdicts, especially when specific cases
have a larger public bearing. This the judiciary is not doing.
And when, as in the case of Satish Sharma and Sheila Kaul, sentences
are passed with barely-concealed vengefulness, the door is merely
opened for judicial review, preferably after the blood-and-thunder
judge in question is sidelined by superannuation.
In the long run, nothing will more discredit the well-deserved
reputation of our higher judiciary as the last remaining bastion
of decency and democracy than activism when there is public frenzy
and quiescence when there is public indifference. The case of
A R Antulay is a significant pointer. When in 1981-82, Arun Shourie
earned his spurs -- and Justice Lentin his -- by getting Antulay
indicted and thrown out of public life for 12 long years, the
public cheered both the crusader and the Daniel come to judgement.
By the time the Supreme Court exonerated Antulay of every single
charge, the public had lost all interest in him. No one can give
Antulay back the 12 long years he lost in the wilderness. For
a politician, that is quite as long a sentence as life imprisonment
for a murderer. A life sentence does not last much longer than
12 years. The difference is that a murderer serves it after being
found guilty. Antulay served it before being found innocent. Is
this justice?
Politicians will start holding the judiciary in real respect and
even awe only when the judiciary shows itself to be totally indifferent
to the siren call of tomorrow's headlines, defuses instead of
encouraging publicity in politically sensitive cases, ensures
the expeditious trial of cases involving politicians, and shows
itself to be unswayed by the public mood in finding politicians
innocent or guilty.
Unfortunately -- and, if this persists, tragically
-- judicial activism has, perhaps unbeknown to itself, allowed
itself to become the handmaiden of political opportunism. Unless
judicial activism turns the spotlight soon upon itself, there
is every danger of tomorrow's judge being held in the same contempt
as today's politician.
The way will then be cleared for a takeover
of the country by the forces of fascism. It happened in Europe
inthe Twenties and Thirties. It could happen in India well before
the Twenties and Thirties of the 21st century. Unless the judiciary
saves itself -- from itself.
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