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Supreme Court judgments starting to cause politicians to rebel ..




The concept of the separation of powers in India is a bit hazy. In a typical democracy, there is a Constitution with a set of defined values and laws that are the core of the country. And then there is the executive (which we know as the Government), the legislature (which makes the laws) and the judiciary (which interprets the laws and is also the protector of the constitution). The separation of powers has the base principle that the judiciary does not make any new laws; these are the domain of the executive and the legislature. However, there are a number of cases in which the Supreme court has taken up cases and held that since the Government is not taking any steps in these areas, the rights of the citizens have to be protected, and hence they have given judgments which are now the law of the land. For example, all anti-ragging steps that have been taken quote the name of the Supreme Courts, since the Government really has not done anything about it. Next, the process of handling sexual harassment cases in the workplace all quote a Supreme Court judgment (the Vishaka case) which set the rules for how to handle sexual discrimination and harassment cases (again, there has been no steps the Government to create laws to handle these areas); even recently, the court came out with guidelines for controlling acid sale and for compensation to acid attack victims (the Government having failed to do anything in this area yet again). All of these are technically cases where the court is making the law instead of just acting as the interpreter of law, but since the Government has been failing in such cases, the courts have held that the fundamental rights of citizens forces them to take such steps.
Another area in which the courts have been very active in the last couple of months has been on handling corruption and the presence of criminal elements in politics. Nobody has the least amount of doubt that there are a number of politicians who dabble in some sort of crime or the other (and we are not talking about corruption, where politicians have zero credibility). Even if you take the number of politicians in elected positions who have serious criminal cases against them, the number is much larger than you would like. But expecting politicians to take steps to clean up politics is next to impossible. In the bad lands of Haryana and Uttar Pradesh, unless a politician has raw power and the ability to project it, there are no easy ways for them to rise to political power (which is the real power – and this is by no means a justification of the politician being a criminal, this is just how the politics of the many decades since independence have developed).

But, when a trio of judgments came out, they ended up shocking the entire political class. First, the CIC, under the RTI law, shocked political parties by setting out a judgment that since political parties use a number of Government services at cheap or zero rates, and since they are there to serve the people, they are covered under the RTI Act and people can raise queries about their source of funding or other details, and the parties will have to respond. All the 6 national parties responded by giving a thumbs down to this judgment, and the Cabinet has very recently made a chance to nullify this judgment.
The other 2 judgments by the Supreme Court were equally shocking for political parties, but very popular with citizens, and hence the parties are a bit doubtful about taking direct steps to nullify the judgments of the court. These 2 judgments talked about a person not being able to stand for elected office if they are under police custody for a crime, and also disqualified a convicted politician if they have been sentenced to a term which is more than 2 years old. Both of these were shocking for the political class. After all, till now, even a politician convicted for a crime was able to claim that till the sentence was confirmed by the Supreme court at the end, they were essentially wrongly convicted, and hence would not be disqualified. Further, the political class threw out the strange concept that parties would get their opponents jailed to ensure that they could not stand for office. This was shocking; essentially parties were claiming that there was no rule of law, no investigation. A political party could easily throw an opponent into jail; this is the reality of the India we are dealing with right now. The court also prohibited Parliament from making any laws in this specific area.
The parties recognize that these are popular judgments, so they are instead raising the points about misuse of these judgments (when was the last time that a political party actually got its opposition convicted of something ?) and also saying that the sovereignty of Parliament has been challenged. This is a fallacy. Parliament is not supreme; any law that is against the fundamental rights of citizen or is otherwise bad in law can be thrown out by the courts, and they have done so in the past as well. There have been precedents in the past, with the Supreme Court even throwing aside a Schedule 9 that the Government had hoped would ensure that the courts would not be able to review such laws, so the concept of Parliament having some constraints placed upon it is easily accepted. However, the political class will eventually find a way around these judgments.




1 comment to Supreme Court judgments starting to cause politicians to rebel ..

  • Politics is the last refuge for the scoundrels.

    The political class unites when they have to defend themselves against the activism of the general public.

    Remember the ‘sense of the house’ motion during the lokpal debate. Nothing concrete happened after that. There is a similar scenario right now.

    Even on the RTI act, the government is diluting the most effective measures now.

    I do not think of a better way, than to have a whole new set of politicians replace the current batch. I hope all the criminals get thrown up in the jail due, in light of the judgement given by the SC.

    And to end this, a well written article.

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