Fundamental rights and wrongs

While the Supreme Court marched forward in law, this year was marred by some unsavoury episodes

Some law journals reporting Supreme Court judgments have run into 14 volumes this year, as the judges have been prolific in expanding fundamental rights. The year opened with a somewhat prescient judgment of the constitution bench which ruled that “religion, race, caste, community or language would not be allowed to play any role in the electoral process” and that election of a candidate would be declared null and void if such an appeal is made during the campaign. The court was clarifying conflict of views which existed earlier.
 
In another erudite decision clearing constitutional haze, a nine-judge bench asserted in the longest judgment this year that right to privacy is a fundamental right even though it is not expressly mentioned in the Constitution. In another constitution bench judgment, the court held that triple talaq violated women’s right to equality. On the corruption front, it convicted Tamil Nadu heavyweight V K Sasikala, and cancelled the degrees of 634 doctors in the Vyapam scam of Madhya Pradesh. It held liquor baron Vijay Mallya guilty of contempt of court though the arm of law could not reach London. Some real estate barons who breached contracts with buyers are cooling their heels in jail.

 
Though these are remarkable steps in themselves, the court faltered on some other fronts. The judges indicated that they have second thoughts on the judgment decreeing singing of the national anthem as compulsory in cinema halls. Realising the economic and social costs of its order banning liquor vends along national highways, the distance from the road was progressively shortened to accommodate more shops. The orders on lighting firecrackers during the festival season were largely ignored as they were as clear as the smoke that descended in the north at that time. The fate of old motor vehicles and dirty fuels was equally hazy.

 

This irresolute stance is less harmful than the self-inflicted wounds that the institution suffered over the past months. It started with the Calcutta high court judge, C S Karnan, ordered to be arrested for defying the SC. The judge absconded for a while till the police picked him up from deep south and sent to jail. A retired Orissa High Court judge, I M Quddusi, was arrested and imprisoned along with his collaborators who promised to get favourable orders from the apex court in a medical seat scam in Uttar Pradesh. The resignation of Justice Jayant Patel of the Karnataka High Court set tongues wagging linking it to his direction for a CBI investigation into the Ishrat Jahan encounter case when he was the acting CJ of the Gujarat High Court. To add to the heap, the widow of former Arunachal CM Kalikho Pul wrote to the CJ for a probe based on his 60-page suicide note, adversely naming two SC judges, but stopped from pursuing it.

 
The role of the collegium has been mired in controversy for several years, and the SC and the government are not able to see eye to eye on the proposed “memorandum of procedure” in selecting judges of the higher judiciary. Reacting to allegations of lack of transparency, the court has been putting out brief notes on how and why they chose the judges. Meanwhile, vacancies in the high court and the SC are increasing along with arrears of cases.
 
The perennial debate over the borderline between the three arms of the state, Parliament, executive and the judiciary, only exacerbated with public interest petitions flooding the court. The judges defend their intrusion to the neighbouring turfs on the grounds that they cannot sit silent when citizens demand their rights and the executive do not help. However, the court knows its limits. When a PIL sought mosquito-mukt Bharat, it dismissed the petition observing that “only God can do it”. It imposed heavy cost on some persons for moving frivolous petitions, like Rs 10 lakh on a Rashtriya Janata Dal legislator and Rs 25 lakh on an organisation which filed 64 cases in various high courts and the SC. But another heavy fine on an organisation that wanted a probe into judges’ role in a medical scam invited sharp reaction from activists. It also led to hectic scenes in which the CJ was seen in conflict with the senior-most judge.

 
The court’s promise of going digital and paperless made earlier in the year remains aspirational, with the paper mounds blocking the corridors. The UP counsel in the Taj Mahal case recently told the judges that she could not reach the well of the court because of unmanageable crowd when an adverse order was passed against the state. Last week, the CJ had to chastise senior counsel calling them a shouting brigade. If telecast of Parliament proceedings is educative on how law-makers perform, viewing SC proceedings would be higher education.