Events
& Issues
New Delhi, 24 December 2020
Supreme Court
MOST HARASSED ORGAN
By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The Supreme Court on
17 December 2020 observed in the case relating to farmers’ protest that farmers
have a constitutional right to protest peacefully, but no right to slip into
violence and damage public property. This stand on protests is being repeated several
times by the Supreme Court and many High Courts that ordinary citizens get sick
and tired and begin to sympathise with the plight of judges having to deal with
forces that defy their rulings and forced to hear similar cases again and
again.
A Bench led by Chief
Justice of India Sharad A. Bobde has clarified in its verdict that the SC “will
not interfere with the protest” which is indeed part of a fundamental right and
“there can certainly be no impediment in the exercise of such rights as long as
it is non-violent and does not result in damage to the life and properties of
other citizens”. People with some common sense can agree that road blockage by
farmers on dharna for many weeks preventing commuters from using roads causes
damage to life and livelihood.
Under the pressure of
circumstances, the Bench gave equal stress on the right to protest of farmers
and the obligation to conduct it peacefully without intruding into the right of
others to carry on their normal activities. It asked the Union Government to
consider deferring implementation of the farm legislations as a step towards
resumption of dialogue with opposing agricultural unions. The Bench also
pointed out to farmers’ unions that talks were necessary to find a solution.
But no way out of the situation has been found so far. The Supreme Court’s
suggestion for setting up a new committee is rejected by the farmers insisting
on withdrawal of the three Farm Laws. It is a big challenge to the authority of
the Supreme Court.
Recall, in February
this year, the Kerala High Court banned strikes and protests in educational
campuses in that State after examining 25 petitions from institutions on loss
of working days. The court has made it
clear that it is the right of students to study and hence other students cannot
forcefully prevent this by unleashing protests. Significantly, the court has
said that the authorities can take the help of the police and also take legal
steps against those who violate these directions thus rejecting the long-standing
view that police cannot enter the premises of educational institutions for
policing.
Apart from obstinate
litigants as in the case of the farm laws, the Supreme Court faces problems
from other sources including high courts. A few days ago, dealing with a number
of habeas corpus petitions, it had to stay an order of the Andhra Pradesh High
Court which sought to initiate a judicial enquiry into the question whether
there is a constitutional breakdown in the State machinery requiring
promulgation of President’s rule. The State Government’s contention is that the
High Court order is a “serious encroachment” on the constitutional powers of
the executive and a violation of the principle of separation of powers. The
on-going tussle between the Government and the judiciary has landed in the
Supreme Court though no complicated constitutional issue is to be settled.
The Supreme Court in
India has original, appellate, and advisory jurisdiction. It has extensive
original jurisdiction which extends to any dispute between the Government of
India and one or more States; or between Union Government and any State (s) on
one side and one or more other States on the other; or between two or more
States.
It has wide appellate
jurisdiction over any decree or final order of any high court in India in
civil, criminal or any other proceeding if the high court certifies that the
case involves substantial questions of law on the interpretation of the
constitution. Even if the high court does not give such a certificate, the Supreme
Court at its discretion give special leave to appeal under Article 136 of the
Constitution from any judgement, decree, sentence or order in any case
involving substantial question of law or interpretation of the Constitution.
Additionally, the SC
has advisory jurisdiction in matters which may specifically be referred to it
by the President of India under Article 143 of the Constitution. IT Act, Excise
Act, Gold Control Act, Contempt of Court Act, Representation of People’s Act
and many others have also vested the SC with advisory role. It can also suo
moto take up certain cases. The apex court can review its judgements or orders
– a provisions used extensively in recent times. Parliament by law can enlarge
the jurisdiction of the Supreme Court to any matter in the Union List.
The Supreme Court is
so burdened with cases and some of them are so urgent that it is often
disturbed at nights also. Justice Nariman once remarked: “Burden on us is
crushing. Please go before a vacation bench”. Governments, political parties,
and political activists are increasingly resorting to legal solution to
political problems.
There is an
undesirable trend among Opposition political parties at the Centre and States
to challenge every decision of the government in courts. It is a way of
delaying/stopping implementation of decisions, and carry on adverse propaganda
against government decisions. This trend pushes the legislative bodies to the
background and elevates public roads and public places as the venue to express
views on an issue and to build public support – a development that directly
drags the police and the judiciary to the scene. And more and more cases are
filed in courts and police-public clashes become common.
India is in the midst
of changing times like many other countries. Perhaps, it is an expression of
frustration on the decline of leftist thinking all over the world and emergence
of right-wing parties. In this political evolution, the role of judiciary as an
independent and impartial organ of the government becomes crucial. Pressure
mounts on the judiciary to safeguard its independence as well as the principle
of judicial restraint.
While dealing with
hate speeches in the context of Delhi riots early this year, the Supreme Court
candidly admitted that it was feeling the “pressure” of the circumstances and
“cannot handle the pressure”. The CJI is reported to have observed: “We are not
saying that people should die. We cannot stop things from happening. We cannot
give preventive reliefs. We feel a kind of pressure on us. We can only deal
with a situation after it occurs. The kind of pressure on us …it is like the
court is responsible. Courts come on the scene after it is done and courts have
not been able to prevent such a thing”.
Can we allow public
perception of judges as neutral persons concentrating on upholding law and
justice to change as a pressurised lot experiencing only stress? There was a
time when judges were venerated and judiciary considered irreproachable. Today,
not only judgements but also judges are criticised and at times even
threatened. We trust that the judiciary is capable of handling the stress. As
it has no financial or executive power, it has to be stress-free to maintain
independence. –INFA
(Copyright, India
News & Feature Alliance)
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