11-12-2006, 06:26 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Supremely Contentious </b>
Pioneer.com
Sunday Burner - Gauri Kohli/Sumit Kumar | New Delhi
Has SC over-reached itself? Legal eagles divided
Executive's failure flayed; clamour for balance & reform
The demolition and sealing row in Delhi has demolished more than walls and sealed more than premises. It has demolished images and credibility - of governments and the Judiciary - and threatening to seal the fates of many, mostly ruling politicians. It has demolished traditional beliefs and arguments and compelled the society to thinking in radical terms.
The eye of the storm is the Supreme Court. Apart from demolition and sealing, issues like caste reservation have raised fears of confrontation between the Executive and the Judiciary. Talking to a cross-section of senior advocates and constitutional experts, Sunday Pioneer found that the legal fraternity is divided on the extent of judicial activism but feels there are larger issues responsible for this kind of a mess.
The dominant view among experts is that though the Supreme Court has not overreached itself, a greater degree of understanding and harmony is required between the Judiciary and the Legislature. Issues like credibility of the political system, sincerity of law-enforcing agencies and occasional insensitivity of courts towards popular feelings cropped up during the survey. Some even talked of reforms, both in the Judiciary and the Executive to redeem India's democracy.
For instance, senior lawyers like Shanti Bhushan felt dismayed by the Supreme Court's penchant for encroaching on the Executive's domain. He said, "This is a democratic country and the will of the people is supreme. As a direct voice of their aspirations, the Executive has every right to exercise its authority in the larger interest of society. The sealing issue in particular is a bolt on the face of Judiciary and the common man is fast losing his faith in the judicial process of the country."
Bhushan added: "Though the Executive has the constitutional means to bring about an amendment to get a reversal of the Supreme Court diktat, the Law Minister of this country is quite a hopeless case and I do not see much happening on the issue." He argued that the high-ranking judges live in ivory towers, away from the current that stores the social fabric of the country, and all such judges who do not care about masses must be impeached."
Bhushan suggested that the Supreme Court should retrace its steps on the issue of demolition and allow the Executive to take appropriate action. Giving a historical background, he said, "Ambedkar was one of the most vocal supporters of giving overriding powers to the Executive in the form of constitutional amendments, and the very purpose of including Article 368 in the Constitution was to defeat unpopular measures through constitutional amendment."
However, former Solicitor-General Harish Salve says he hasn't come across a single order of the Supreme Court where it has overreached itself. "All directions of the Supreme Court - whether for CNG or demolition - are based on some law which the Government - cast with a duty to enforce - is observing in its breach. As far as quota is concerned, equality is a fundamental right, and the right to move the Supreme Court itself to enforce such right to equality is a fundamental right," he says.
Senior advocate PN Lekhi, too, does not feel that the Supreme Court is over-reaching itself.<b> "All the judges have taken an oath to preserve, protect and defend the Constitution and the law. They will be betraying their oath of office if they don't react to a breach of law. However, the Supreme Court is not doing to the full extent what it should do. During Emergency, the Supreme Court acted as a coward. A court that allows murders does not deserve to be there."</b>
Former Supreme Court Bar Association president RK Jain has a more balanced approach.<b> "Both the executive and the judiciary are taking measures well within their jurisdictions and the apex court has not wronged itself in giving the diktat for demolition, though it is well within the realm of the Executive to reverse the orders of the court if it finds the recent developments unpopular and unfriendly," </b>Jain said. "Though people are making opinions as per their own interest, the only way out is for the Judiciary and the Executive is to sit together and take appropriate steps to put the genie back into the bottle," Jain adds.
Senior advocate PP Rao is all for Supreme Court's effective intervention. Citing his opinion on the issue of sealing in Delhi, he says: "The Supreme Court is discharging its duty by directing strict adherence to the law governing town planning which has been breached continuously for a number of years. Had the Executive implemented the law and not allowed illegal constructions to come up, the present problem would not have arisen. When the executive fails to discharge its duties and the Supreme Court also fails, it will result in lawlessness. Democracy survives on the rule of law. Lawlessness will lead to anarchy. That will be the end of democracy and constitutional governance."
On the issue of the recent Supreme Court judgement which protects the creamy layer to SC and STs in the matter of filling up the posts reserved for them, Rao says,<b> "the creamy layer aspect needs to be dealt with in greater detail. In fact, that was not the issue before the court. The scope of the writ petitions challenging the constitutional amendments was limited to the question whether the amendments were violating the basic feature of the Constitution. How to enforce the provisions for reservation of posts in favour of SC/STs and whether creamy layer should be exclusive from SC/STs were not the subject matter of the writ petitions. I wish, the Supreme Court had not touched upon this aspect while upholding the constitutional amendments which protect the reservation in favour of SCs and STs in promotion and consequential seniority for them".</b>
To avoid tensions of this kind that are witnessed today, Rao has his own solution<b>. "These issues are creating a situation were the Executive finds it difficult to implement the court's orders in letter and spirit and the Judiciary insisting on scrupulous implementation of its orders, we need reforms - political, including electoral reforms, administrative reforms and judicial reforms. The three pillars of the State viz, the Legislature, the Executive and the Judiciary are not functioning in a co-ordinated manner so as to secure achievements of the constitutional goals."</b>
There are certain situations in which the Supreme Court should intervene.<b> "It is the Constitutional duty of the court to intervene when the Executive fails to enforce the law. The court on its part should observe limits set by the Constitution. and the legislature. It is because the court has been discharging its constitutional duty, it enjoys maximum credibility and confidence of the people in a much larger measure than the executive or legislature," </b>Rao says.
<b>Speaking Free</b>
<i>SC is discharging its duty by directing adherence to civic law which has been breached continuously for years </i>- Sr Advocate PP Rao
<i>The sealing issue in particular is a bolt on the face of Judiciary and the common man is fast losing his faith in the judicial process of the country.</i>
<i>Though the Executive has the constitutional authority to bring about an amendment to get a reversal of the Supreme Court diktat, the Law Minister is quite a hopeless case and I do not see much happening on the issue -</i> Sr Supreme Court advocate Shanti Bhushan
<i>I haven't come across a single SC order where it has overreached itself </i>- Ex-Solicitor General Harish Salve<!--QuoteEnd--><!--QuoteEEnd-->
Pioneer.com
Sunday Burner - Gauri Kohli/Sumit Kumar | New Delhi
Has SC over-reached itself? Legal eagles divided
Executive's failure flayed; clamour for balance & reform
The demolition and sealing row in Delhi has demolished more than walls and sealed more than premises. It has demolished images and credibility - of governments and the Judiciary - and threatening to seal the fates of many, mostly ruling politicians. It has demolished traditional beliefs and arguments and compelled the society to thinking in radical terms.
The eye of the storm is the Supreme Court. Apart from demolition and sealing, issues like caste reservation have raised fears of confrontation between the Executive and the Judiciary. Talking to a cross-section of senior advocates and constitutional experts, Sunday Pioneer found that the legal fraternity is divided on the extent of judicial activism but feels there are larger issues responsible for this kind of a mess.
The dominant view among experts is that though the Supreme Court has not overreached itself, a greater degree of understanding and harmony is required between the Judiciary and the Legislature. Issues like credibility of the political system, sincerity of law-enforcing agencies and occasional insensitivity of courts towards popular feelings cropped up during the survey. Some even talked of reforms, both in the Judiciary and the Executive to redeem India's democracy.
For instance, senior lawyers like Shanti Bhushan felt dismayed by the Supreme Court's penchant for encroaching on the Executive's domain. He said, "This is a democratic country and the will of the people is supreme. As a direct voice of their aspirations, the Executive has every right to exercise its authority in the larger interest of society. The sealing issue in particular is a bolt on the face of Judiciary and the common man is fast losing his faith in the judicial process of the country."
Bhushan added: "Though the Executive has the constitutional means to bring about an amendment to get a reversal of the Supreme Court diktat, the Law Minister of this country is quite a hopeless case and I do not see much happening on the issue." He argued that the high-ranking judges live in ivory towers, away from the current that stores the social fabric of the country, and all such judges who do not care about masses must be impeached."
Bhushan suggested that the Supreme Court should retrace its steps on the issue of demolition and allow the Executive to take appropriate action. Giving a historical background, he said, "Ambedkar was one of the most vocal supporters of giving overriding powers to the Executive in the form of constitutional amendments, and the very purpose of including Article 368 in the Constitution was to defeat unpopular measures through constitutional amendment."
However, former Solicitor-General Harish Salve says he hasn't come across a single order of the Supreme Court where it has overreached itself. "All directions of the Supreme Court - whether for CNG or demolition - are based on some law which the Government - cast with a duty to enforce - is observing in its breach. As far as quota is concerned, equality is a fundamental right, and the right to move the Supreme Court itself to enforce such right to equality is a fundamental right," he says.
Senior advocate PN Lekhi, too, does not feel that the Supreme Court is over-reaching itself.<b> "All the judges have taken an oath to preserve, protect and defend the Constitution and the law. They will be betraying their oath of office if they don't react to a breach of law. However, the Supreme Court is not doing to the full extent what it should do. During Emergency, the Supreme Court acted as a coward. A court that allows murders does not deserve to be there."</b>
Former Supreme Court Bar Association president RK Jain has a more balanced approach.<b> "Both the executive and the judiciary are taking measures well within their jurisdictions and the apex court has not wronged itself in giving the diktat for demolition, though it is well within the realm of the Executive to reverse the orders of the court if it finds the recent developments unpopular and unfriendly," </b>Jain said. "Though people are making opinions as per their own interest, the only way out is for the Judiciary and the Executive is to sit together and take appropriate steps to put the genie back into the bottle," Jain adds.
Senior advocate PP Rao is all for Supreme Court's effective intervention. Citing his opinion on the issue of sealing in Delhi, he says: "The Supreme Court is discharging its duty by directing strict adherence to the law governing town planning which has been breached continuously for a number of years. Had the Executive implemented the law and not allowed illegal constructions to come up, the present problem would not have arisen. When the executive fails to discharge its duties and the Supreme Court also fails, it will result in lawlessness. Democracy survives on the rule of law. Lawlessness will lead to anarchy. That will be the end of democracy and constitutional governance."
On the issue of the recent Supreme Court judgement which protects the creamy layer to SC and STs in the matter of filling up the posts reserved for them, Rao says,<b> "the creamy layer aspect needs to be dealt with in greater detail. In fact, that was not the issue before the court. The scope of the writ petitions challenging the constitutional amendments was limited to the question whether the amendments were violating the basic feature of the Constitution. How to enforce the provisions for reservation of posts in favour of SC/STs and whether creamy layer should be exclusive from SC/STs were not the subject matter of the writ petitions. I wish, the Supreme Court had not touched upon this aspect while upholding the constitutional amendments which protect the reservation in favour of SCs and STs in promotion and consequential seniority for them".</b>
To avoid tensions of this kind that are witnessed today, Rao has his own solution<b>. "These issues are creating a situation were the Executive finds it difficult to implement the court's orders in letter and spirit and the Judiciary insisting on scrupulous implementation of its orders, we need reforms - political, including electoral reforms, administrative reforms and judicial reforms. The three pillars of the State viz, the Legislature, the Executive and the Judiciary are not functioning in a co-ordinated manner so as to secure achievements of the constitutional goals."</b>
There are certain situations in which the Supreme Court should intervene.<b> "It is the Constitutional duty of the court to intervene when the Executive fails to enforce the law. The court on its part should observe limits set by the Constitution. and the legislature. It is because the court has been discharging its constitutional duty, it enjoys maximum credibility and confidence of the people in a much larger measure than the executive or legislature," </b>Rao says.
<b>Speaking Free</b>
<i>SC is discharging its duty by directing adherence to civic law which has been breached continuously for years </i>- Sr Advocate PP Rao
<i>The sealing issue in particular is a bolt on the face of Judiciary and the common man is fast losing his faith in the judicial process of the country.</i>
<i>Though the Executive has the constitutional authority to bring about an amendment to get a reversal of the Supreme Court diktat, the Law Minister is quite a hopeless case and I do not see much happening on the issue -</i> Sr Supreme Court advocate Shanti Bhushan
<i>I haven't come across a single SC order where it has overreached itself </i>- Ex-Solicitor General Harish Salve<!--QuoteEnd--><!--QuoteEEnd-->