Dear members of BCAS family,
Chai-Chunauti-Chunav
By the time this President’s page reaches your desks, the bulk of the voting would have been over and post counting on 16th May 2014, we will all see round two of this long winding tamasha. Horse trading will begin if no clear majority emerges. But that’s another story. All of us were so caught up with this well-orchestrated frenzy that talking about anything else was just not possible. We have done our bit by voting. Now, it’s out of our hands. Phew! But this message is not about that.
Trimurti
Our Government consists of three branches; the Executive, the Legislative and the Judiciary. According to the Constitution, the Legislative branch is to make the laws, the Judicial branch is to review the laws and make sure that they are Constitutional, and the Executive branch is to enforce the laws. We have all seen and read a lot about the current state of our Executive and the Legislative. I haven’t read much about the Judiciary. By the 73rd and 74th amendments to the Constitution, the Panchayat Raj system has become an institution for local governance, which makes our Judiciary very unique. We are all aware about the statistics of the pending cases, the pace of the discharge cases and many other issues that fraught our legal system. A Judicial Reform is the next big leap in our evolution that we are all waiting for. But this message is not about that.
UttejitUchhatamNyayalay
My message is about the emerging role of the Supreme Court (SC) in India. But before I progress, a few disclaimers:
1. These are my personal views and not that of the Bombay Chartered Accountants’ Society.
2. In the unlikely event of this message causing any kind of legal or other issue, the Editor of this journal be completely absolved of any repercussion.
3. I have the highest respect for our judiciary, in particular the Supreme Court.
4. Contempt of Court is not intended. As we all know, according to the Constitution, the role of the Supreme Court is that of a guardian of Constitution and that of a federal court. The Supreme Court has extensive original jurisdiction in regard to the enforcement of the fundamental rights. The Supreme Court also has the power to take cognisance of matters on its own.
NyayikSakriyata
The SC has come a long way since then. It has been playing an exemplary role in our democracy in discharging its constitutional duties. Nature abhors vacuum and hence, in recent times, time and again, we have seen that the SC has gone beyond deciding on the legality of a case. Many judgments have preambles which are ‘sermons’ to the Executive, Legislative or the society. Here are a few examples of such recent judgments which were sent to me by my friend CA. Anup Shah (he is an unwitting partner to this and he too maybe absolved).
1. Sahara’s case: the Court has placed Subroto Roy under its custody and is personally monitoring the repayment schedule proposed by Sahara.
2. Black Money / Liechtenstein Bank Accounts Case – the Court has again pulled up the Government for failing to reveal the names of all Liechtenstein Bank Account Holders.
3. 2G Case – Spectrum Allocation Case was personally monitored by the Apex Court.
4. Open Spaces in Mumbai –6 mt. wide open skirting around building projects and minimum 10% of project to be kept open to the sky.
5. Lal Batti – The Supreme Court slammed the indiscriminate use of the Red Beacon on Cars.
6. Vishaka’s Case: The Supreme Court laid down the law on Sexual Harassment in the absence of any legislation on the subject at that time.
One respects all the judgments and most of these sermons. But doesn’t this reek of Judicial Activism? Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”India has a recent history of judicial activism, originating after the Emergency which saw attempts made by the Government to control everything, including the judiciary. During the emergency period, the Government passed the 39th Amendment, which sought to limit judicial review for the election of the Prime Minister. Subsequently, the parliament, with most opposition members in jail during the emergency, passed the 42nd amendment which prevented any court from reviewing any amendment to the Constitution with the exception of procedural issues concerning ratification. A few years after the emergency, however, the SC rejected the absoluteness of the 42nd Amendment and reaffirmed its power of judicial review in the Minerva Mills case (1980). Another example of activism is the Public Interest Litigation which was an instrument devised by the courts to reach out directly to the public, and take cognizance though the litigant may not be the victim. Suo moto cognisance allows the courts to take up such cases on its own.
JiskaKaamUsikoSaaje
The original intent was that the three branches would be able to check and balance one another so that no single branch would be able to claim too much power. And this balance is sought to be changed time and again. At times the SC takes on the Legislative (Eg: drafting the Vishaka Guidelines) and the Executive (Eg: taking Subroto Roy in the SC custody) roles. The SC can uphold or overturn decisions of all lower courts. This highest of courts can make decisions that cannot easily be overturned. But the Legislative tends to reign supreme and the retrospective amendments post Vodafone judgment is an example of how the Government of India, instead of accepting the SC verdict, made retrospective amendments in the Incometax Act to nullify the effect of Vodafone’s case.
The trend has been supported as well as criticised.The New York Times author Gardiner Harris sums this up as “India’s judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India’s SC and Parliament have openly battled for decades, with the Parliament passing multiple constitutional amendments to respond to various SC rulings.”
We are glad that there is at least one wing of the government which has a conscience and has the courage to act upon it.Having said that, this trend is neither intended nor desired. If each wing of the government discharged its role diligently then this debate and tussle would not arise. We need the courts to discharge their primary duties, an area where there is a lot of scope for improvement. The vast number of pending cases is an area that needs highest attention. If the courts get distracted by activism then this issue will only get more severe. Justice delayed is justice denied.
Errata: In my previous communique I erroneously referred to Mr. Nandan Nilekani as CA. Correct examples would have been Mr. Rahman Khan,
Mr. Suresh Prabhu, Mr. Piyush Goyal and Mr. Harish Salve. I thank my friend Narayan Pasari for pointing out this error.
Here’s wishing everyone happiness and love.
With Warm Regards
Naushad A. Panjwani
