Let there be fireworks on five star activism, introspection, scrutiny and Judicial Reforms

Anoop Swarup

The issue of five star activism and what drives the judiciary has been raked up by Prime Minister Narendra Modi and it has become a subject matter of intense debate particularly on new media. The issue does stir up a hornet’s nest and underscores the need for a closer look at the two oscillating ends–perception and reality. On this focal point, the obvious corollary is the need for judicial introspection, a point so succinctly raised by the Prime Minster – though equally stoutly defended by the Chief Justice of India at the Conference of Chief Ministers of States and the Chief Justices of the High Courts.

Anoop Swarup

We have to be mindful that probity and truth should never be compromised for fear of contempt on the edifice of upholding judicial integrity or purported divinity. In a democracy people have the right to know the truth and justice should neither be delayed nor denied but delivered every time. Individual rights, judicial integrity and independence though hallmarked in a democracy have to time and again stand the test of public scrutiny over time as enshrined in the Constitution. The set customary law and conventions can in no case take precedence to the dictum that ‘truth alone should triumph’ in the end. We should not forget that values imbibed over the ages may conflict invariably with rights to liberty, free speech and expression guaranteed by the Constitution and on grounds of public morality, national interest and defence.

Also the overall good of the people, public interest and a due process of inquiry to find the truth in a specific case will have to take precedence even at the expense of individual’s rights. Thus judicial activism even if considered to be five star opens up to scrutiny not only judicial pronouncements and legislative intent but also our existing notions of right or wrong even if it has been tested earlier before a Court of Law. Thus very much like the other three pillars in a democracy judiciary even if considered divine Mr Prime Minister and constitutionally guaranteed should be open to introspection and scrutiny.

The issue of five star activism and what drives the judiciary has been raked up by Prime Minister Narendra Modi and has become a subject matter of intense debate particularly on new media. The issue does stir up a hornet’s nest and underscores the need for a closer look at the two oscillating ends–“perception and reality”. On this focal point, the obvious corollary is the need for judicial introspection, a point so succinctly raised by the Prime Minster – though equally stoutly defended by the Chief Justice of India at the Conference of Chief Justices and the Chief Ministers. Let us delve into a few examples, Shreya Singhal who fought the IT Act’s 66A Case in the apex court, was perhaps a five star activist who had indeed safeguarded our right to freedom of expression; in the Rhea Pillai matter the pronouncement by Delhi High Court, the views of the Court on the Nirbhaya BBC Documentary; giving people the right to reject and the list goes on. Let me also ask, in Subramanian Swamy’s filing of 2G and 3G matters – was the judiciary responding only to perceptions and why should the judicial pronouncements in Bhopal Gas tragedy be not open to public debate and scrutiny in larger public interest as it may be alleged that the Courts were influenced by five star activism of the government in power at the time. Yes we may very well question five star activism at Kudakulum Power Plant and finally let me ask the question is Teesta Setalwad, a five star activist? Ironically enough when she approached the UNCHR she was pulled up by none other than the Supreme Court of India.

Thus judicial scrutiny by the Courts themselves can be a matter of five star activism. Why judiciary should not be not brought in the ambit of the right to information? Is it a ominous warning to the hitherto unquestioned judiciary, perhaps not, and was the Chief Justice really countering the Prime Minister? It may be said that brevity is not the soul of wit but the centre point of a strong argument, both for and against. So let us examine the issue further even at the cost of contempt. I recall almost three decades ago, while posted in Kolkata I had to run from pillar to posts at great personal risk to have the stays vacated against smugglers from all over the country as we found to our dismay that in about four score COFEPOSA matters anticipatory bails were taken from a particular judge of the High Court that too surreptitiously on Holidays by invoking the constitutional writ jurisdiction of the Court by showing residence in the Andaman Islands by unscrupulous Counsels.

Thus in the infamous Coalgate case where Prashant Bhushan had filed a petition on Coal Block allocation was it a matter of judicial activism? Someone wittingly commented that Coal had indeed turned into diamond for some. I do find it amusing that the entire discussion in the public domain has centred around the culpability of ex Prime Minister Man Mohan Singh rather than the overall intent of the policy and its departure in so called larger public interest coloured even more by criminality and conspiracy in the actual manner of Coal Block allocation. Supreme Court’s relief to the former Prime Minister from summons of the Trial Court, though not a clean chit, may be questioned on grounds of jurisdiction and on finer legal arguments. But as observed by some, we should not loose track of the fact that there was a departure from an established policy since 1993 to 2005 where the process followed involved a screening committee and that the auctions were shelved ostensibly at the behest of the States that have an unique responsibility in respect of the sources in their jurisdiction. Was it a political consideration and a deeper conspiracy involving vested interests of all political hues that were hand in glove with private interests that the then Prime Minister overruled coal allocation in favour of a private party Hindalco? I do vividly recall a case where as early as in 1990 that we had detected a case of duty evasion at Kolkata Customs on pitchblende by Hindalco.The defraud to the exchequer and criminality if any could only be investigated by a professionally run CBI that is free of the ruling government’s diktat and a well informed and proactive judiciary as a watch dog on executive functioning and may well be the final recourse in our democratic polity.

Then there is the matter of judicial oversight on political decisions and lets take the case of misplaced priorities for good governance as the Chief Minister of the newly set up Telengana State buying Toyota Fortuner SUVs and latest in the series is purchasing of IPhones at a cost of INR 30 crore from the starved State finances just to appease the bureaucracy, an irony that besets our country’s poor record of governance in the States. Let me remind the readers that in Telengana, farmers are starving and the State is facing a debt of INR 61,710 crore necessitating an austere budget. These and the so called pre poll bonanzas such as cheap rice, free waivers and doles being distributed from the exchequer in many States where the politicians deserve to be under judicial scrutiny.

Therefore the question remains whether the judiciary is really divine as was mentioned by the Prime Minister or can be influenced in our country by unscrupulous counsels and judges acting in tandem with undesirable elements and the law-breakers. In fact judicial activism has been the hallmark of our judicature since independence and has made India proud on several occasions as is appreciated the world over. Perhaps, even if it was a mere exchange of ideas by the Prime Minister with the Judiciary any amount of introspection will always be welcome. The fact remains that it is actually the five star activists, both within the judiciary and beyond who have, through public interest litigation, judicial scrutiny and oversight, brought to the fore, issues that range from rights of individuals to upholding freedom and liberty, public interest and national interest, ethics and morals by refining and redefining our values and of course the course of judicial reforms and for good governance. After all and in the end it is ‘Truth alone that should Triumph”, let there be ‘Satyameva Jayate’ for the judiciary and our country.