[Rajeev Dhavan is a well-known senior Supreme Court advocate.] http://epaperbeta.timesofindia.com/Article.aspx?eid=31818&articlexml=ET-By-Invite-Are-Judges-Made-to-Measure-08042015002057
Apr 08 2015 : The Economic Times (Mumbai) ET By Invite - Are Judges Made to Measure? RAJEEV DHAVAN Senior Supreme Court Advocate Insulting comments by Modi have no depth An over-confident, ill-informed Prime Minister Modi has attacked the judiciary with a contemptuous allegation, "5-star activists were driving the judiciary ...through scaremongering." He has also created a new concept of "perception justice" which he regards as alien to the Constitution. His remarks judges are "scared (because) of what will happen", were even more derogatory . Then a clarion call: "Everyone -be it government, media or the class 5-star activists -will have to work to strengthen the judiciary". At first this may seem as an irresponsible joke. It is certainly irresponsible, but hardly a joke and it definitely is contempt of court. In the Namboodripad case (1970), the judiciary treated the allegation of class bias as contempt. Not the best of decisions, but it is the law. Modi has made a strong allegation of bias, of judiciary abdicating to fivestar activists and of the urgent need for the government, people, media and activists to "strengthen" the judiciary . It does not deserve the retaliation that Modi runs a government which has multiple-star predators whom he chooses over people. A mortgaged government prefers a weak judiciary . Many years ago, Nani Palkhivala coined a phrase: A judiciary made to measure. This was to attack judges and judicial appointments which supported Indira Gandhi's regime. The response to this was given by Mohan Kumaramangalam in Parliament, a `committed' judiciary . The concept of a `committed' judiciary has firmer foundations than the present 5-star attack by Modi. The idea of a committed judiciary was controversial. Protagonists of the idea said it meant commitment to the secular and socialist ideals of the Constitution, antagonists felt that this required commitment not to any constitutional goals but Indira's regime. In other words, it meant a regime judiciary . A retort was made by the sagacious Krishna Iyer, then a Kerala judge: "In the inevitable chemistry of social change, judges are certainly not anti-catalysts" The insulting comments made by Modi have no depth. In the first place the judges are accused of not understanding the Constitution which they have to be taught and disciplined to understand. Indeed, Modi's calls for a campaign to teach the judges reminds one of Kipling: "O, the years we wasteAnd the tears we wasteAnd the work of our blood and handBelong to the people who do not know And do not understand." Chill Mr Modi! The second accusation is that the entire judiciary is not to Modi's liking. In other words, Modi wants regime judges who the public should train. One basic structure of the Constitution emphasises that elected politicians are custodians of the political texts and judges are custodians of the rule of law and justice texts of the Constitution. The Constitution is a dynamic document. Both our political rulers and the judges have to uphold the Constitution. The last word on the Constitution is with the judges. Politician-driven governments have to conform to the rule of law. In India, they simply don't. At a more mundane level, it is the duty of the judges to ensure that the letter and spirit of the law is obeyed.Judges also have to decide whether laws are valid, reasonable and reasonably administered. But for the signal failure during the Emergency , judges have been doing precisely this.Modi is wrong when he says politicians can change their decisions but there is no further appeal in the highest court.Judges overrule earlier decisions, have the power to reexamine their decisions through review and curative procedures. Political decisions are reviewed on policy considerations. The judiciary decides on the basis of principle -after discussing principles and their application thread bare. Of course, judges make mistakes and are criticised for it. They have some process for rooting out corruption in the judiciary .This process is weak and needs vigorous reconsideration. PIL was invented and used over the years for social justice, environment and anti-graft. It is a massive innovation, opening the judiciary to be more accessible and sensitive to the Constitution's true goals. If this had not surfaced, the executive would have raped the environment, corrupted social justice programmes and amassed even more wealth. All this happens all the time. Modi wants a judiciary committed to Modi. He wants dictatorial powers undisciplined by the rule of law.A `Modi' judiciary is anathema to our Constitution. Modi refers to 5-star lawyers. Who are they? The lawyers with fat fees or pro bono PIL lawyers? Curiously , Modi has multi-star clients to whom he wants to hand over the country . He is still in demagogic rather than democratic mode. 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