Govt vs SC: Khursheed fires first round, court gears up

The stage is being set for a new power struggle between government and judiciary. On Friday, the Union law ministry fired its first salvo by filing a review petition in the Supreme Court challenging the latter’s decision to set up a Special Investigation Team (SIT) of its own to chase black money, with two former judges as heads. On Saturday, Chhattisgarh Chief Minister Raman Singh said he would be moving the apex court to review its judgement ordering the state to disarm its Special Police Officers (SPOs) in Bastar. SPOs are tribals armed by the state, with minimal training, to serve as its first line of defence against the Maoists.  Many other states, including Jammu & Kashmir, Jharkhand and Orissa, have used SPOs to help the security forces fight terrorism. On Monday, The Economic Times carried an interview with new Law Minister Salman Khursheed, which can be interpreted as opening a broader front against the judiciary. In the interview, Khursheed suggested – in nuanced words – that maybe the Supreme Court should be reforming itself. In language that packs its own punch, Khursheed linked the government’s own failures with what he felt were those of the court: “Cleaning up black money is as hard as reforming the SC (Supreme Court)….I hope the judges in the SC, in their own confabulations, reflect on this. I am not happy that we don’t get the vision and the view of the entire court.” A plain translation of the apparent and hidden meaning of this statement is this: just like you can’t clean up your act, it will take us some time to clean up our act on black money or corruption. Also, this seems to be a veiled effort to tell the Chief Justice that stray judgments delivered by smaller benches should be subject to review by larger benches, if the government so wants. The Supreme Court, for its part, has already sensed that it will come under attack for its recent activism. It fired its own pre-emptive ammo last week. Anticipating the government’s line of attack – that it has to keep the broader objective of serving the poor in mind while doing anything – the court gave out its own version of the aam aadmi defence to justify activism. In what can be interpreted as a politically-loaded judgment, the Supreme Court bench of Justices GS Singhvi and AK Ganguly effectively accused its detractors of being pro-rich. The bench hit out at “some lawyers, journalists and men in public life” for accusing it of over-reach only when it went to defend the poor by entertaining public interest litigation (PIL) from “genuine social groups, NGOs and social workers,” says a report in The Indian Express. The bench, in a self-damning statement, said that “so far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent. It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have so far had the golden key to unlock the doors of justice.” The judgment, delivered on 12 July, related to a case filed by an NGO called National Campaign for Dignity and Rights of Sewerage and Allied Workers, which wanted to highlight the plight of sewerage workers who were frequently trapped in manholes while cleaning sewers. [caption id=“attachment_43243” align=“alignleft” width=“380” caption=“Salman Khursheed is unlikely to be overawed by the Supreme Court’s pre-emptive strike to defend activism, given the kind of hot water the government has gotten itself into over the 2G, Commonwealth Games, Central Vigilance Commissioner and black money cases. Raveendran/AFP”]  [/caption] But Khursheed is unlikely to be overawed by the Supreme Court’s pre-emptive strike to defend activism, given the kind of hot water the government has gotten itself into over the 2G, Commonwealth Games, Central Vigilance Commissioner and black money cases. His interview to The Economic Times thus raises a whole range of issues. Among the things Khursheed wants the Supreme Court to reconsider are these: The court’s attitude to bail in the 2G cases. Among other things, Khursheed has said that bail was not denied in the past in such cases. So why now? He seems to suggest that maybe the court is too swayed by public opinion and the very high media reporting on the scam. The court’s contradictory judgments. In Binayak Sen’s case, the Supreme Court said his thoughts (pro-Naxal) have to be separated from his actions (whether they were anti-national, as claimed by the Chhattisgarh government), and gave him bail. But in the 2G cases, Khursheed asks whether the courts went that “extra mile to ensure that the person does not suffer before you are able to finally, institutionally condemn him.” Whether each bench of the Supreme Court can offer different opinions. Judges can change their minds, but whatever they decide, “is it the position of the court or is it one of the positions the court has taken?” This is an interesting argument, for court judgments are court judgments, and often contradictory. For more on courts and their widely differing judgments, there’s no better book than Arun Shourie’s “Courts & Their Judgments”. But in raising the issue, Khursheed seems to be preparing the case of a review of many recent judgments. Whether the court is using hard cases to make bad laws. The obvious reference is to the black money and 2G cases. Khursheed asks: “These may be hard cases, taking the totality of circumstances. I don’t think we should submit ourselves to making bad law.” The totality of circumstances he wants the courts to consider include the fact that “we are in times of a coalition government.” Whether the court is over-reaching. Khursheed told the newspaper: “We don’t want to be made accountable where we are not wrong.” Given the recent exit of Solicitor General Gopal Subramanium, who resigned over the fact that he was kept in the dark over the appointment of a new lawyer to represent Kapil Sibal — it is clear that the government wants its cases in the Supreme Court re-argued. Khursheed is probably preparing the ground for challenging many more recent judgments of the Supreme Court, if needed. Nor is Khursheed the only one to challenge the courts. Still smarting under the court’s blow in the Binayak Sen case (he was given bail even though the Chhattisgarh government claims he was in cahoots with the Maoists), the state received another kick in the butt when the Supreme Court ordered it to disarm its SPOs fighting the Maoists and report compliance. “We are consulting experts on the issue. We will 100 percent go for a review petition,” Chief Minister Raman Singh is quoted as having said. Khursheed, of course, spoke warmly about the Binayak Sen judgment, but since the SPO verdict involves the centre and other states too, this could be one area where there could be a convergence of interests between Congress and the BJP. However, it needs pointing out that the courts have stepped in only when the executive failed to do its duty. Among the examples of these: misuse of the office of governor to dismiss non-Congress governments (Bommai case), introduction of clean fuel in Delhi’s public transport, failure to give the CBI a clear mandate in the 2G scam, and failure to observe established conventions while appointing the CVC last year. Then there’s are cases where the legislature failed: the JMM bribery scam during Narasimha Rao’s government, where JMM members were bribed to vote for the government. The courts stayed away, saying they couldn’t intervene in things that happened within Parliament, but the fact is no one got punished for the bribery. When legislature does not act, who steps in? The Delhi police got moving in the cash-for-votes scandal of 2008 only when the court recently asked for reports on what had been done. Parliament does not seem to care even though the matter concerned bribery of its members during the 2008 trust vote. No doubt, the Supreme Court will back off in some cases where it is challenged by an aggressive executive and hold on to others where it is on surer ground. But the moral of the story is simple: when one arm of the Constitution fails in its duty, another steps in. The Constitution abhors a vacuum.