By Anang Pal Malik
In an edit page article in the Indian Express of date, Indira Jaising joins issue with the Prime Minister over his speech mentioning 5 start activists.
The article retails all Leftist allegations against “development.” It merits a detailed reply. What follows is a response to the points raised by her in her article.
Paras in double inverted commas and italicised are excerpts from her article, followed by my response.
“Here is what he said: “It is never too difficult to deliver justice within the boundaries of the law and Constitution”. If it were all that easy, we could just as well have computers, into which we feed the law and the Constitution, programmed to come out with justice. Why do we need trained judicial minds? The law evolves and every generation has a right to interpret the Constitution according to contemporary standards and the rising aspirations of the people who are governed by it. That is the role of a constitutional court. To suggest that it is an easy task is to betray ignorance of the democratic as well as the judicial process, where every issue is debated in an open court before a decision can be taken, a decision that advances constitutional values rather than takes the nation backwards into an age in which there was no Constitution, democracy or fundamental rights.”
We need trained judicial minds to examine the facts and material placed before them, which computers can not do. No, role of Constitutional court is not to give each generation its own interpretation of law, a new interpretation. Because a new interpretation is in effect a new law, and courts can NOT make law. They can not. The day courts start making laws, even by new interpretations of existing laws, or by assigning English words wholly new meanings, is the end of justice as we know it. Because then it becomes a case of Courts making law during the hearing of a case, and applying that law to the case. That is double whammy. Courts make law, which they have no business to do, and they apply it retrospectively, which is any thing but justice. And courts making laws is not democracy or judicial process. It is the destruction of both.
“The decisions of the executive are in the realm of discretion and require no reasons to be stated. In contrast, judgments are rendered in open court and must be supported by reason.”
But all the time we hear from the judges that executive must record reasons for a decision taken, otherwise it becomes an arbitrary decision.
“In contrast, policy decisions of the government cannot be challenged, not even in a court of law, be it the Supreme Court or the high courts, except to the extent that they impact the fundamental rights of citizens — and that too only after the decision is taken and the impact evident.”
Good that Indira Jaising notes this. But somehow, now every policy decision is claimed to be impacting fundamental rights by some tortuous reasoning. Let us hope that comes to an end.
“To invest or not to invest in a particular sector, to develop nuclear energy or not to develop nuclear energy are not matters for the courts to decide. Nor can the court sit in judgement over budgetary allocations. Under-budgeting for socialjustice issues is the easiest way to defeat the rights of the people, something much in evidence now.”
Again, it is nice to know that Indira Jaising knows this simple fact. But she betrays her Leftist leanings by talking of “social justice.” Once an adjective has been placed before the word justice, it is no longer the justice that we understand in relation with courts. And so is the pet Leftist phrase, “social justice.” And no, the fundamental Rights which are guarded by Courts, and only which are to be guarded by Courts, need no budgeting, they are negative Rights, restrictions on State as to what it can not do to citizens, not what it should do for citizens. Therefore, underbudgeting for freebies does not defeat any rights of any citizens. Because Right to freebies is not only not a fundamental right, it is no right at all.
“And that brings me to his suggestion that “five-star activists” are driving the judiciary. The prime minister does not clarify who is a “five-star activist”. And if there is a star rating for activists, who are the four-star, three-star and zero-star activists? He seems to be targeting his opponents and those who oppose the development policies of the ruling dispensation. The message for the judiciary is: “Don’t mess with me or my development policies”. This is nothing short of interference with the independence of the judiciary. In a speech replete with not-so-veiled references to the various people’s movements taking place across the country on land acquisition, forest rights, mining etc, the prime minister made it clear that he sees “five-star activists” as the biggest threat to the country’s development and progress. The paradigm of economicdevelopment peddled by the present government, partly an extension of the policies of former governments, rests on the unbridled plundering of natural resources and theirsale to multinational corporations at throwaway prices, doing away with environmental regulation, and grabbing fertile agricultural lands from farmers without consent. Any question, dissent or articulation of an alternative paradigm that is people-centric and sustainable is immediately branded as “anti-development”, obstructing the pursuit of 10 per cent GDP growth, and, quite often, “anti-national”. The prime minister is clearly rattled by the reach of people’s movements even though his party is armed with the entire state machinery to muzzle or suppress criticism — and is actively doing so. The fact that civil society has frequently approached the judiciary to claim relief or get arbitrary executive decisions struck down has not gone down well with him.”
She herself acknowledged in the beginning that policies are not in the realm of courts. So if Prime Minster is gently reminding this fact to the Courts, how is it interference in the judiciary? And natural resources are not being plundered. If Jaising knew basic economics she would not have used this pet Leftist phrase. Acquisition implies that no consent is to be taken, otherwise it is purchase, not acquisition. The only people centric development is industrialisation of India, and there is nothing called unsustainable when it comes to economics. She is a fine lawyer, and should speak on economics issues only if she has studied basic economics, instead of retailing catch phrases picked up from media.
“Let us also not forget that while a Mumbai court discharged the BJP president in the alleged fake encounter killing of Sohrabuddin Sheikh and the CBI has chosen not to challenge the decision, Sheikh’s family is likely to appeal against it. Apart frompersonal interest, there is the political interest in the development agenda.”
Now this is what should qualify as a veiled threat to the BJP President.
“We need to remind ourselves that there is no effective opposition in Parliament. Thereal opposition to the policies of the ruling party — for instance, the anti-nuclear campaign and the movement against coal mines being set up in forests — is coming from public-minded individuals, organisations and NGOs. Contrarian views, whether on economic, political or social issues, are the heart and soul of a democracy and have been repeatedly held as such by the courts. One thought that the leader of the world’s “largest” political party would understand its importance but clearly this is not the case. Name-calling is not the solution; nor is intimidating the judiciary. Our judiciary has a tradition of putting prime ministers and chief ministers in their place when the occasion requires and will do so again if need be. It is not an easy judiciary to humiliate or tame.”
If people of India have decided not to have an opposition in the parliament, it is not for the Courts to play that part. That is not the job of courts. Public organisations and NGOs are free to oppose government’s policies, but they can not dictate the courts, nor courts should allow themselves to be used as alternative policy making bodies.
The article in full can be read here.
