So cynical has the public become about the impartiality and seriousness with which corruption cases against the rich and the powerful are probed, that hardly an eyebrow is raised when the judiciary starts actively monitoring the investigation in such cases. Over the last couple of months, the Supreme Court has assumed a supervisory role in the CBI's investigation of the 2G scam, asking the agency to act against “persons who think themselves to be the law” and demanding to see the charge sheet before it is filed. Earlier this week, in the case relating to black money stashed abroad, another bench of the Supreme Court asked the government to consider invoking terror laws against Hasan Ali Khan. The provocation for such judicial activism lies in the suspicion — most often well grounded — about the lack of good faith in the manner these cases are being probed. An FIR in the 2G scam (against unknown persons and firms) was registered as early as October 2009, but it wasn't until the Supreme Court reprimanded the CBI for dragging its feet that the investigation really moved forward. Similarly, the Centre's persistent stonewalling in the black money case led an exasperated Supreme Court to ask: “What the hell is going on in this country?”
Some of the Court's prodding has been in the form of sharp questions and cutting observations on the investigations. It is hardly a surprise that its display of annoyance has led agencies such as the CBI to interpret oral observations made in the course of the hearing as if they were judicial diktat. Since the mid-90s, the judiciary has tried to strengthen the independence of investigating agencies, a process that both began with, and is highlighted by, the Supreme Court's judgment in the Jain hawala case, which centred on a diary that allegedly recorded the sums of money paid by a money-laundering agent to the country's leading politicians. The Court took the extraordinary step of barring the CBI from furnishing any information on the case to the then Prime Minister P.V. Narasimha Rao. Eventually, it ruled that the superintendence of the CBI in relation to investigations will vest with the Central Vigilance Commission, and not with the Prime Minister's Office which, deplorably, continues to influence investigations informally apart from exercising formal administrative control. In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But in an environment where justice is constantly being subverted, it is arguable that the courts are left with no choice but to step beyond their traditional domain and prod the executive into discharging its constitutional responsibilities.
Some suggestions to tackle and curb corruption in public life:1. Have a vigilance commission to investigate serious cases of corruption. It should be independent of the PM's office. 2. Have a special court to hear the cases on a fast track within 6 to 12 months and a further 6 months to hear appeals, if filed. 3. Bring changes to the law to include longer jail sentence with a mandatory minimum of 3 strokes of the cane and seizure of all ill-gotten and unaccounted for wealth including those held in the names of family members and proxies.4. The burden of proof should rest with the accused and under the law he should be presumed guilty until he proves otherwise.5. And the most contentious of all - any law passed with the above features should come into effect post approval of it by parliament and should not have retrospective effect. This, hopefully, will ensure a fair chance of the present parliament (consisting of a good number of crooked and corrupt politicians) passing it. Those currently under investigation should be tried under existing laws. The new law is mainly meant to come heavily on any corrupt politician or civil servant thereby help in cleaning up the political system, in particular.
Can anyone bet on the credibility of the Judiciary itself? How far is the Judiciary is out of the realm of influence of politicians- the main culprits. The case during Madam Gandhi(Indira Gandhi) period had made it crystal clear that judiciary cannot be relied upon blindedly. The judges are appointed on the whims and capprices of the President of India who him\herself belongs to the rulling party only. So, the whole chain works and at the last, it is a sad thimg to mark it down that the 'People of india' are under the dictatorship of 'We the People of India'-the three wings of the Parliament only!
People are losing faith in the political class ruling in the country while working in the nexus with the bureaucracy and the moneybags. The colonial mindset is manifested by the working of the police and revenue departments at district level . Both these deparments work directly under the control of THE DEPUTY COMMISSIONER and are the most corrupt. The system is corrupt to the core and judicial activism and people's movement in a democratic way are the only silver lining.
When will they initiate proceedings against themselves? The central issue in this country which has adopted the Constitution is unavailability of remedies against the breach of law. Why ? Even though there are laws for every conceivable matter they are not implemented because those who know the working of laws and its breach in this country know that by the time justice comes against a wrong done the matter becomes 'a matter of 'academic' interest'. Nobody wants to get entangled in the process of law. If even after 32 years of litigation a citizen does not see any justice coming his way, why would others take the lawful course? Nobody wants to get into this tangle. THIS judicial MALADMINISTRATION is at the root of loss of faith and belief in the Indian polity. I have not yet heard Judges sounding a serious warning to the government to set the matter right. Once the courts start delivering in TIME. Everyone will know that the the system works and it will show result in all fields. Judicial Administration is the INFRASTRUCTURE of governance - you need superhighways, subways, highways, fly-overs, sky-walks to streamline the traffic and the economic system is productive and healthy. Without Judicial Administration there is no hope for the country. THE JUDICIARY MUST SET ITS OWN HOUSE IN ORDER.
It is unfortunate for the country and shameful for the incumbent ruling dispensation that the judiciary has been compelled to meddle in the duties of the executive. The executive ia laden with totally incompetent and greedy persons, many with criminal records. The constitutional provisions like caste-based reservations and money and muscle power have facilitated their election. Our constitution makers, with due respect, could not envision the social dynamism needed for inclusive and rapid growth. The private parties that supported the freedom struggle turned out to be more business minded than nationalists. Some thoughts. Should we consider not allowing coalitional governments with more than two parties? This will need trimming of the number of parties. Consider derecognizing a party which has won seats in less than 25% of states(NCP, RJD, DMK, AIDMK, SP, BJD, TDP, JD etc will vanish!)? Also, we should switch to Presidential form of government, as in US, with direct election, after due diligence, for the President. The voter should have a right to recall the non-performing elected representative and to revise the tenure of the government upward or downward on review every two years. Our constitution, though hailed as great, is very rigid and protective of the high and mighty in all departments of democracy. It has allowed the exploitation of the very entity that it was supposed to have served and helped - the common man.
I was really happy to see this article, because it was like a buzz that everyone of us are happy about the Supreme Court's attitude changes recently, and when I saw it reflected live from this article, I can now confidently believe that Supreme Court has indeed realised the amount of power it has. I think the direction is good!! There needs to be a wave of change, where being good and fair needs to be more smarter way of life rather than being corrupt. This can happen only when the corrupt people get punished readily. Which is moreover happening, and then there will be that wave of change where being fair and following procedures is the smarter way to lead a life, starting from the common man!!
Dear Sir,It is true that the public is solidly behind the super activism of the honourable judges of the Supreme Court.But this judicial activism cannot go on for ever.There is a saying in Tamil to the effect that the thief always steals a march over the protector and ways will be found by governments to compromise judges.Some of the honourable judges of the High Courts and the Supreme Court are not above reproach when it comes to personal aggrandisement and it is a pity that they are shielded by contempt of court law.Judicial activism must direct an independent CBI to bring charges against errant judges too.That will enhance the reputation of the Supreme Court even more.If the government chooses the right person for the post of CVC he can certainly complement the efforts of the S.C. in cleansing the system of the corrupt elements.
We Indians are believers in Karma and think that if we have bad rulers , it must have been the deeds of our previous birth . We generally don't get agitated over bad governance . We literally believe the Bhagwadgeeta when it says that whenever righteousness declines and wickedness becomes strong the God comes to the world to punish the wicked and save the virtuous . In the present scenario people think that the God is acting through the mechanism of the Supreme Court of India.
Your Editorial gives a good insight on ,why the current activism in the Judiciary, especially the Supreme Court's taking up monitoring of the 2G loot, should not be considered and is not being considered by the people at large as striking the powers of the Executive, but is forced upon it by a corrupt Executive that allows the high and mighty to get away. While we witness people's revolution in the Gulf, in India we see a revolution in the form of an proactive Judiciary taking up on behalf of people's cause, the scourge of corruption , and am sure it has the solid support of all well-meaning and patriotic citizens of this country. Clean-up of the rotten poltical class has long been a yearning for the average man and this has now been translated into solid actions by the Supreme Court. We are all indebted to the men in Black since this is a clean-up not only for the present generation but for all generations in future. I must also add that Judicial Activism is also going hand-in-hand with a Media Activism that we have not witnessed so far. The vibrant media helped by the technology of today has been quick and decisive in exposing the corrupt, winning the hearts and minds of the people.I request the Media to continue their good work so that this process of cleaning up the mess in our political system is complete and a new era begins in the Indian Political Horizon. In this context, I call upon educated youth to take to politics and bring about a transformation for the good which meets people's aspirations. I suggest they can fix up handsome salaries and perks for the positions (as in Singapore for example) and thereafter, not touch a penny meant for the people's welfare and indulge in corrupt practices. A right to recall corrupt politicians is long overdue and this must be enacted and passed immediately.Finally, there must be a retirement age of not more than 60 for politicians just like any other service, we should not have the sorry spectacle of a CM ruling from his wheel-chair and a complete ban on the relatives or sons of politicians to come into politcs must be in place.This will be ensure only meritorious people filling up the vacancies created, since we have found that the sons/daughters of politicians are only mediocre or worse, as they have positions of power handed over on a platter. Let us all Salute our great nation and stand by our fellow countrymen in the Judiciary and the Media, if required we will get on to the streets. I hope that the Army also comes out in support of the current actions of the above 2 pillars of Democracy.
The short space of your editorial has a convincing and louder voice.Now a days morning never starts almost without revealing the corrupt practices leading to crony capitalism and money laundering.To check corruption,next to judiciary is mass movement.
I fully subscribe myself to your view expressed in the closing sentence of your editorial. When delay, denial and subversion of justice is order of the day, the judiciary must step in to stem the rot. Profiles of many of the contemporary occupants of the Parliament are not that laudable.
The role of judiciary is indeed commendable in steering the recent CBI probes. But I am doubtful that this model can sustain for long. If change has to come, it must begin with people. It is really deplorable that political activism is still very limited amongst the common man - who is content with his/her 'I me myself' life..
Its pathetic to notice that job of the Legislature is being done by Judiciary. The administrative control, appointment and accountability of investigatory agencies must be relinquished from the executive and given to a Standing Committee of Parliament to ensure better/prompt probe. But lack of political will to impose restrictions on itself- Quis custodiet ipsos custodes ?
'What the hell is going on in this country?' These are no mean words which should be taken up lightly by our politicians, civil servants, investigating agencies, and especially by us, the Common Man.
It seems only judiciary is fulfiling its duties, while executive and legislature are still widening the trust deficit. Few questions which still haunts me, why CBI is not getting independent status, free of executive? And when the long standing LOkpal bill would be passed?
Only one thing in my vision can save this country, selfless approach by the common man, i.e. educating the illiterates, becoming more politically active, and most importantly, getting self realisation of the responsibilities and duties of being a citizen of this great nation. Its high time to stand up for our Mother India.
Investigation of crimes and prosecution of those accused are the duties of the executive branch of the government. The judicial arm of the government, a court of law that is, has to determine after going through the due process of law whether the guilt of the accused has been clearly established by the prosecution and if found established to award punishment to the guilty as per the law. There will be something amiss if the court has to sit in judgement on the findings of the investigation which it has supervised. If anyone supects that the government is influencing the investigatiion of crimes in a way detrimental to the law of the country, a court of law can be moved in the matter and the court can decide whether there is any infringement of the law or dictates of natural justice by the government. Any adverse judgement will apply moral presure on the government besides giving the defendant an opportunity to challenge the findings of the investigations. In any case if what the government is doing is not illegal, but only that it is not in the interest of good governance, it is a political question and not a legal one. Political solutions should be sought in such cases with the judicial system only applying moral pressure if any.
now this judicial activism is helping to surface new truth and imposing kind of belief that no one is above the law and those are in charge will be accountable for their act.but question arease that who is running the country is it judiciary? and if so then what for this goverment. Huge ethical deficit running in this country and someone has to impose confidence of people but surely it's not a good sign.
The suggestion seems to be that the judiciary is justified in going out of the domain of separation of powers doctrine . If this happens and has happened in the past in the form of judicial activism, would not the legislature or the executive feel tempted to interfere in the judicial domain? And if this happens would it not lead to dissolution of the constitutional doctrine of separation of powers itself?
Your editorial has mainly focussed the failure of legislature and executive and intervention of the judiciary. I feel that whenever legislature and executive have failed , the judicial activism has taken definite shape for compelling the government to intiate action against the erring persons. Upto this point we can agree the intervention of judiciary but not beyond that as it would create bad precedent. But we have been observing that judges make unnecessary oral observation and some time go beyond its jurisdiction. Judges are there for interpreting and proper implementation of law and give judgement not oral observation like commentators in the judicial comment boxes. We could call it overdoings of judiciary and judges- if there is necessity for such observation-why not on pen and paper. Judiciary and its judges are their for judgements. Judges must not go after extra-constitutional authority manily to show their supremacy- this practice will kill our democratic fabrics and also the crediblity of judgesand judiciary!
People accusing the current Supreme Court of "activism" also conveniently forget that the Supreme Court itself is being prodded by PIL litigants such as Subramanian Swamy and Prashant Bhushan. If these people would not take up the cause of the citizen, there would be no room for the Supreme Court to discharge its responsibility of delivering justice. All things considered, I do not think that we have a case of "judicial activism" in India that needs to be curtailed, or is even an iota more than what the citizens of the nation deserve.
Perhaps the perception of "activism" appears as a contrast against the previous CJ's "do not need to disclose" dark era.
Also, there is more to be done for a progressive judiciary. We need to review several instances of the recent past where Judges should have recused for ethical reasons but have not done so. The "Bangalore Principles" remain Indian only in name, with ethical and moral principles guiding judiciary less and less. This should change.
All said and done the administrative wing is the implementing agency.No amount of supervision by the court can materially alter the situation. What we require is a sound system that do not allow the burocracy and their political bosses do not get away from deterant punishments for their inaction or negligence. In today's set up the errant persons can at the most be served with a contempt notice which would go on for ever with patronage of the same burocrats and polititical boss.
You should see the latest episode of Devil's Advocate with Mani Shankar Aiyar -- the arrogance and audacity with which he calls parliamentary opposition on 2G scam as stupid is unbelievable. Then he calls the media as inept. Once that failed, he tries to make personal remarks against the interviewer himself! Mani Shankar aiyar and the Congress Party do not even realize the impression such irresponsible and arrogant remarks make on the minds of the public, especially when the public perception is strongly against the Congress. Thanks to the Supreme Court and the relentless pursuit of some sections of the media, at least some action is being taken against corruption.
Almost all political parties in India have neither the will nor willingness to tackle the menace of corruption. However, we the citizens, are also to be blamed for the current situation. We cannot expect the Courts to always take an activist's role and bring to book the guilty.
Citizens have to take a much active role and tell parties leaders to implement electoral, administrative and judicial reforms to reduce scope for corrupt practices. Although it may be difficult to do way with corruption, it would certainly be possible to reduce it by implementing the reforms.
One immediate reform which is required is compulsory audit of expenses of all political parties and state funding of elections to the Statte legislatures and the Loksabha. If citizens come together, and force parties to behave, they can contain corruption.
- Narendra M Apte
It is amazing how an institution has managed to refrain itself from being part of the morass and rot around it. This is so typical of our country where we have isolated islands of honesty and integrity in a ocean of sleaze and corruption.
Check M.K.Gandhi on corruption :
“..It (corruption) has now become worse than before. Restraint from it has practically gone. Corruption will go when the large number of persons given unworthily to it realise that the nation does not exist for them to exploit but that they exist to serve the nation. This requires morals, and extreme vigilance on the part of those who are free of the taint. Indifference will be criminal…”
(27 January 1948. From the pages of The Hindu)
Note the last sentence.
It pains me to think that our founding fathers have warned time and again, yet, we have succumbed to the temptations of the great indian lethargy, the historic slumber that the Western historians so famously wrote about. The great Indian indifference. Ignore the oppressors and continue with our daily life. Watch a cricket match and cloud our mind with false glory and pride.
Sir, "The Wellspring of Judicial Activism" is a well-meant timely written editorial comment. CBI & Vigilance commissions should not be influenced by top politicians in power. Unless this basic input is met, by the authorities in power, the judiciary will necessarily interfere to set the right course. S. Venugopalan 3, 4th st. E.B. colony, chennai-88. 14/3/11
You have correctly assessed the popular opinion on the judicial activism. This has become necessary when corruption has corroded every walk of public life. Our Anglo Saxon concept of innocence of the accused till it is proved, has become a burden. In cases of corruption, laws must be amended so that the accused has to prove his innocence. The role and responsibility of the Media to be the watch-dog of our public life in today's context needs to be emphasized. Along with " well-spring of judicial activism ", I hopefully believe, we can begin our course-correction of our public life..
Not only is the judicial activism essential to crush a corrupt decadent government system to the bones, but the judiciary should be backed by an equally assertive media activism. The rot has to be stopped and reversed. Talking about the finer points of democracy in India only helps the corrupt system to continue its bad habits. Which is what the system wants.
The newses heard recently in the country are shameful and deserve sympathy. The role of Supreme Court upon the law is facing some tremendous changes. How pathetic our systems are? It is hurtful to each citizen of the country. Money power and political power decides the criminal in. Now, SC is the only one reliable thing for us.
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