A judicious defence

When the other two pillars of state prove ineffectual, the judiciary has to assert itself

The article by Pratap Bhanu Mehta (‘With due respect, Lordships’, March 12) and several letters to the editor, convey the message that the judiciary should remain on a pedestal with the proverbial blindfold in place. The widespread clamour that followed the observation on corruption by a Supreme Court judge is a classic case of shooting the messenger. I have not come across a single comment saying that, yes, there is indeed widespread corruption and we need to do something about it. Instead, everyone seems keen to ensure that the Supreme Court does not express strong views; as if by not talking about it, corruption will go away.

Mehta is right when he refers to the justice’s observation on the corrupt as the “jurisprudence of exasperation”, but his last sentence — “Courts are doing things because they can, not because they are right, legal or just” — is not completely correct. Yes, the courts are “doing things” not only because “they can” but equally because the other two pillars of state who should be doing things they are not doing. While the judiciary may well be guilty of overstepping its brief from time to time, it still appears to be a knight in shining armour for the common citizen, in the face of the persistent dereliction of duty by the executive and judiciary.

So can the judiciary be blamed for being exasperated? I think not. An obvious case is that of Explanation 1 added to Section 77(1) of the Representation of People Act. As far back as 1975, the Supreme Court ruled that expenditure incurred by the political party and by supporters of a candidate should be considered as expenditure incurred by the candidate him/herself. The Cabinet got the President to issue an ordinance inserting Explanation 1 in Sub-section (1) of Section 77 “clarifying” that expenditure incurred by the political party or by an individual other than the candidate or his election agent shall not be deemed to be expenditure incurred by the candidate or his election agent for this purpose of this section. This ordinance, which was subsequently passed as an amendment to Memorandum of Representation of People Act, completely nullified the order and purpose of the Supreme Court judgment and the underlying Section 77 (1) read with Section 123 (6) of the Representation of People Act. In the last 30 years since 1975, the Supreme Court has often reiterated its stand and has gone to the extent of saying that Explanation (1) has removed even the “fig leaf to hide the reality” of the impact of big money on the outcome of elections. If in over 30 years our elected representatives have not found the time or inclination to heed the repeated urgings of the judiciary, what can the judiciary do but get exasperated?

The latest example of exasperation of the common citizen and also of the judiciary is the sworn statement by the Union of India in the Supreme Court on March 2, 2007, that “convicted” members of legislatures must be allowed to stay in the legislatures otherwise governments might fall because they survive on slender majorities. Given the performance of two pillars of the state, we the citizens should actually be very grateful to the third pillar for focusing on the burning problems of society.