We are not calling it overreach yet, not even judicial activism. Perhaps the word indiscretion fits the bill. Should the courts be wasting their time judging whether a personal remark, even if it comes from a political leader, is insensitive or not?
Samajwadi Party leader Azam Khan’s comment that the Bulandshahr gang rape is the "outcome of a political conspiracy" is reprehensible to the core.
It not only reflects his utter insensitivity towards the victims but also the growing tendency in the political class to create a smokescreen of doubts and suspicion to obfuscate real issues. Accept for the moment that it is the official position of his party. Even then should the courts get involved, particularly when they have to handle a backlog of over three crore cases? The answer, as common sense dictates, should be no.
Such remarks discredit the person and the party making these among people. Moreover, these call for a political response and social shaming, not a legal one. “Why should people in power and authority make such remarks?” asked a Supreme Court bench while hearing a petition from a survivor of that incident. It sought an explanation from Azam Khan why a criminal case should not be lodged against him. The court also wanted to study whether such statements violated the Constitution.
One sympathises fully with the petitioner; she has reason to be aggrieved but if courts started weighing the constitutionality or ethicality of every remark made by politicians where would it end? Is it possible for them to judge the sensitivity or lack of it in every statement politicians make? In a country where political attacks border on the defamatory almost as a rule and some organisations thrive on being insensitive and hurtful, there’s not much courts can do. The response has to come from somewhere else.
Take the case of Rahul Gandhi where he was dragged to court for allegedly calling the RSS the killers of Gandhi. In his speech, he said people from the RSS killed MK Gandhi. A case was filed soon enough, accusing him of holding RSS as an organisation responsible for the killing. The court asked: Did Rahul imply so in his speech? His lawyer said no. Rahul did not blame the organisation as a whole but its people, which is evident in the recording of his speech, he argued. The court was satisfied. Now, why should the courts entertain petitions on what is implied or not? In more serious cases the courts can get into that but why not exercise discretion in others?
Chief Justice TS Thakur painted a grim scenario of the judiciary when he said recently that as many as 70,000 judges would be required to clear the pending cases in the country. There were 900 sanctioned posts in high courts, of which 450 remain vacant, he added. If the scene is not bad enough we have a surge in litigation over the last couple of years. Soon after Congress leader Ramya Krishnan said Pakistan was not hell and people there were like Indians, someone rushed to the court calling her words amounted to sedition. Ever since the issue of nationalism came to dominate the public discourse there have been flurry of cases charging people with being anti-national.
Most of these cases are frivolous in nature, aimed at garnering publicity and media glory. They have saddled the judiciary with additional burden. The latter by entertaining such litigation is only encouraging a trend that should be discouraged. Post-Emergency, the practice of PILs increased the burden on the judiciary but still had a purpose that was noble. It allowed ordinary citizens power against the instruments of the state. The judiciary was accused of overreach and excessive activism because it tended to encroach upon the domain of the executive and the legislature. Yet it was acceptable. The other institutions had ceded space. But the trend now is different. The courts are being asked to decide issues that don’t render themselves easily to a legal solution. The cases are more in the nature of personal point-scoring. The silliness shows.
At some point, courts must draw the line and say enough is enough.