04-10-2007, 03:00 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>What overreach? </b>
The Pioneer Edit Desk
Judiciary can't ignore flawed policy
Prime Minister Manmohan Singh was uncharacteristically blunt while pointing out that "the dividing line between judicial activism and judicial overreach is a thin one" at a conference of Chief Justices of High Courts and Chief Ministers in New Delhi on Sunday. The unusual sharpness of his comments reflect the UPA Government's increasing disquiet over the judiciary, especially the Supreme Court, undoing policy framed not for the welfare of the masses but with an eye to garnering votes at election time. In fact, for a better appreciation of Mr Singh's remarks they should be seen against the backdrop of the recent Supreme Court order staying the implementation of the policy to reserve 27 per cent seats for OBC students in Union Government-funded institutions of higher education. Before that order, the Supreme Court, in a landmark judgement with far-reaching implications, ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges, are subject to judicial scrutiny if they violate fundamental rights. This has virtually stripped the Union Government of the constitutional protection that has been abused, more so by the Congress, for the explicit purpose of preventing politically-motivated policy from being challenged in court. Given the cynical purpose behind his cautioning the judiciary against overreach, it is difficult to support Mr Singh's contention, although it can be nobody's case that judges should be unmindful of maintaining harmony between the three organs of the state - the executive, the legislature and the judiciary.
<b>But to blame the judiciary alone, as is being done by both the executive and the legislature, for committing territorial transgression would be unfair</b>. Addressing the same conference<b>, Chief Justice of India KG Balakrishnan spoke of the need for "judicial review to determine constitutionality of legislation", a point that appears to be lost on politicians who have come to believe that policy, no matter how flawed, cannot be questioned.</b> For instance, there is near-unanimous 'outrage' over the Supreme Court's stay order on the OBC quota and all kinds of absurd demands are being voiced to subvert the order. Yet, no politician appears to have the courage to point out that there would have been no occasion for either the executive or the legislature to cavil at the judiciary if such a pernicious policy had not been adopted under the pretext of "social justice". Or, for that matter, had successive Governments not indulged in blatant misuse of the Ninth Schedule, it would have remained beyond the purview of judicial scrutiny. In a sense, when decrepit politicians with perverse perceptions of caste-based identity politics and equally perverse notions of 'secularism' that are predicated on the twin ideas of nurturing a permanent supplicant minority and pandering to a communal vote-bank, begin to formulate policy, judicial 'overreach', if at all this is the right term, is the only remedy to restore some amount of credibility to our system of governance. In any event, it would seem that the Prime Minister and his party are opposed to judicial 'overreach' only when the shoe pinches them. For, when the Supreme Court has pilloried non-Congress State Governments in the past, those who are now exercised have either maintained a silence or applauded that 'overreach'.
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The Pioneer Edit Desk
Judiciary can't ignore flawed policy
Prime Minister Manmohan Singh was uncharacteristically blunt while pointing out that "the dividing line between judicial activism and judicial overreach is a thin one" at a conference of Chief Justices of High Courts and Chief Ministers in New Delhi on Sunday. The unusual sharpness of his comments reflect the UPA Government's increasing disquiet over the judiciary, especially the Supreme Court, undoing policy framed not for the welfare of the masses but with an eye to garnering votes at election time. In fact, for a better appreciation of Mr Singh's remarks they should be seen against the backdrop of the recent Supreme Court order staying the implementation of the policy to reserve 27 per cent seats for OBC students in Union Government-funded institutions of higher education. Before that order, the Supreme Court, in a landmark judgement with far-reaching implications, ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges, are subject to judicial scrutiny if they violate fundamental rights. This has virtually stripped the Union Government of the constitutional protection that has been abused, more so by the Congress, for the explicit purpose of preventing politically-motivated policy from being challenged in court. Given the cynical purpose behind his cautioning the judiciary against overreach, it is difficult to support Mr Singh's contention, although it can be nobody's case that judges should be unmindful of maintaining harmony between the three organs of the state - the executive, the legislature and the judiciary.
<b>But to blame the judiciary alone, as is being done by both the executive and the legislature, for committing territorial transgression would be unfair</b>. Addressing the same conference<b>, Chief Justice of India KG Balakrishnan spoke of the need for "judicial review to determine constitutionality of legislation", a point that appears to be lost on politicians who have come to believe that policy, no matter how flawed, cannot be questioned.</b> For instance, there is near-unanimous 'outrage' over the Supreme Court's stay order on the OBC quota and all kinds of absurd demands are being voiced to subvert the order. Yet, no politician appears to have the courage to point out that there would have been no occasion for either the executive or the legislature to cavil at the judiciary if such a pernicious policy had not been adopted under the pretext of "social justice". Or, for that matter, had successive Governments not indulged in blatant misuse of the Ninth Schedule, it would have remained beyond the purview of judicial scrutiny. In a sense, when decrepit politicians with perverse perceptions of caste-based identity politics and equally perverse notions of 'secularism' that are predicated on the twin ideas of nurturing a permanent supplicant minority and pandering to a communal vote-bank, begin to formulate policy, judicial 'overreach', if at all this is the right term, is the only remedy to restore some amount of credibility to our system of governance. In any event, it would seem that the Prime Minister and his party are opposed to judicial 'overreach' only when the shoe pinches them. For, when the Supreme Court has pilloried non-Congress State Governments in the past, those who are now exercised have either maintained a silence or applauded that 'overreach'.
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