M J Antony: Defiance in different shades

Politicians, businessmen should avoid collision that might bleed the Constitution

Judiciary is one arm of the state that has no agency to enforce its orders. It has to seek the help of the executive or the legislature to implement its directives. If they are at loggerheads, ugly constitutional situations might develop. In the US, former president Andrew Jackson reportedly taunted the Chief Justice in a classic case: "Justice Marshall has made his decision, now let him enforce it!"

Since there is comity between the three estates, crises are usually diffused before they get out of hand. In two cases, former chief ministers, who openly defied Supreme Court orders, apologised before it - S M Krishna in the Cauvery water dispute (2008) and Kalyan Singh in the Ayodhya demolition case (1994). The judiciary currently appears to be facing another season of unseemly constitutional crunch: Cauvery II, the attitude of the Board of Control for Cricket in India on the Lodha Committee recommendations to clean up cricket, and a tougher prohibition law after the Patna High Court struck down Bihar's law.

What the Nitish Kumar government did in the case of prohibition is a common way to sidestep inconvenient judgments. The Karnataka government has done it earlier in the Cauvery issue by passing a law, which purported to override any court order. The Kerala government had also passed a law to wriggle out of the Mullaperiyar dam dispute with Tamil Nadu. But the Supreme Court has time and again frowned on such ways of dodging its rulings. Quashing the Karnataka law, the court said: "It would be unfair to adopt a legislative procedure to undo a settlement...The object of the Act was to take away the force of the judgment. Such an act on the part of the legislature amounts to exercising judicial power."

Another way to circumvent judicial pronouncements is to move applications for "modification" of the order (as the diesel car lobby does), which is a review in camouflage. Next, a review petition itself; and then, as a last resort, "curative petition". The success rate of all these stratagems has been slim; but they are used to satisfy people in the client states or to buy time to bargain further with the rivals. In several judgments, the Supreme Court has condemned the practice of calling for repeated reviews: "The Almighty alone is the dispenser of absolute justice; the rest can err." Yet another soft way to suspend action is to raise constitutional issues and get the dispute referred to a larger bench, which will not be constituted for years.

Then there are other subtle ways to sabotage court orders. The governments can prevaricate on implementing court directives. The 1981 judgment, Upendra Baxi vs State of Uttar Pradesh, is still listed in the Supreme Court at random seeking implementation of a scheme to improve the working of resettlement homes for women. The state governments have managed to avoid the responsibility for over three decades. Similarly, the 33-year-old order for shifting graves to solve the 136-year-old dispute between the Shias and Sunnis in Varanasi has been avoided by successive governments. The Prakash Singh judgment (2006), once hailed as a landmark in police reforms, is gathering dust for years as neither the Centre nor the state governments want to change the rotten state of affairs. The governments change meanwhile, and secretaries are transferred, providing more reasons for engineered delays.

The Supreme Court has prohibited a strike by lawyers and prescribed punishments for the guilty men in black robes. However, lawyers have flouted the orders and resorted to violence like the recent incident in Patiala House, a kilometre from the Supreme Court, over Kanhaiya Kumar's arrest. Contempt proceedings are being adjourned in the Supreme Court. Kerala lawyers have shut out the media from high court premises since three months for reporting the molestation of a woman by one of them.

But the lawyers must be given their due. They are helpful in avoiding the might of justice. They can prolong parole for industrialists, protect the interests of tycoons, who have taken refuge abroad, and have immense resources to keep justice at the doors. Last month, the Supreme Court was shocked to find that Gujarat government lawyers managed to get 61 adjournments in 35 years because the documents involved in the case could not be translated. Politicians and businessmen should therefore take the help of such lawyers and avoid head-on collision that might bleed the Constitution.