Judicial activism Of corrupt individuals, media trial and justice
PUBLISHED IN GREATER KASHMIR
The recent past has witnessed a good measure of writs, orders and directions from the Supreme Court of India which could be termed classical examples of Judicial Activism, an expression used invariably to connote meaning when courts pronounce on matters which usually and in the ordinary course of things do not fall within their well defined areas of operation or jurisdiction. Legally the courts in these matters may not be lacking jurisdiction totally, but as a matter of practice which over a long period of time has hardened into an unwritten rule, the courts do not interfere in such matters as are best left to the discretion or powers of the Executive or Legislature.
There might have been instances of judicial activism in the country in the past but then the constitutional doctrine of separation of powers was never lost sight of. The Supreme Court of India while dealing with various matters and while giving new dimensions to the concept of rule of law and taking the concept of rule of law to higher legal heights had always refrained from making pronouncements on matters of public policy followed by the executive. Thus the often spoken about doctrine-of-separation of powers between the judiciary, executive and parliament was respected and clearly kept in mind.
Without going into finer details as to what could be termed as judicial activism or pure judicial functioning and not trying to lay down lines of distinction between the two, let us come straight way to the recent unusual decisions or directions of Supreme Court which have once again brought the debate to the fore. All this started when in the recent past Mr. Subramanium Swami approached the Supreme Court of India seeking directions on to CBI to probe in to the 2 G Scam. In his petition Mr. Swami maintained that he had written to the Prime Minister of India to grant sanction for the prosecution of Mr. Raja the then Telecom Minister but the Prime Minister did not grant the same, he further said that he had written to the Prime Minister in this connection in November, 2008. Till then no FIR was lodged in 2G Scam. One wonders as to how the Prime Minister could grant sanction to prosecute Mr. Raja merely on the petition of Mr. Swami. However, an FIR was lodged in 2G Scam in October, 2009 and the Supreme Court started to monitor investigation into the case. What followed is history.
The accused in 2G Scam where subjected to media trial on the one hand and on the other hand the Supreme Court of India while monitoring the investigation acted in a method and manner, that gave rise to many legal ponderables, for instance that one of the cardinal principles of criminal jurisprudence, ‘an accused is presumed to be innocent till his guilt is proved beyond doubt at the trial of the case’ was given a burial and an impression was created that whatever the investigating agency comes forthwith is the gospel truth and that as if the guilt of the accused was already proved, so much so that the concession of bail to the accused persons was also denied to them. Though the case even if proved, does not carry death penalty not even life imprisonment as punishment. In thousands of cases across the country which are heinous in nature and where the allegations are grave, but do not carry death penalty as punishment accused are enjoying the benefit of bail because in the legal system in this country bail and not jail is the rule, especially at the pre-trial stage. However, in the case under discussion again the cardinal principal of law relating to bail that (bail is not to be with held as a matter of punishment) was given a good bye. That the accused is presumed to be innocent and the presumption of innocence is in favour of the accused till proved guilty beyond any shadow of doubt and he has right to remain on bail as a presumable innocent person, all this and many other principles of criminal jurisprudence and criminal justice system received a burial.
Any one belonging to legal profession with even slight understanding of the criminal jurisprudence and criminal justice system, can safely say that in the heat and dust created by such cases as 2G Scam, the courts of the country have allowed the long respected cardinal principles of criminal justice system to become a causality and in fact have made these so.
A pertinent question stares one in his or her eye that as to what purpose of law and justice is served by keeping Kalanmozi in continued judicial custody, would she flee justice if she was allowed bail? Women are allowed bail even in cases which involve death penalty or life imprisonment as punishment. Kalanmozi is an ML P. and very well known person in her own rights and has very strong roots in society. Therefore, there is no reason in law to withhold her bail.
Another disturbing instance is Hassan Ali’s case, why is he still in jail, when the allegations against him are failing apart in spite of what the investigating agency had to publicize about him and in spite of very strong observations of the Supreme Court in his case. He was put to media trial much before his actual trial in a court of law would start and people were given to believe that Hassan Ali is involved in money laundering in a big way and that he is the king pin in the matter of stashing black money in foreign banks. He was publicized to be owing Rupees Seventy Two Thousands crores of income tax to the country by the investigating agency and in a rush perhaps the Supreme Court not only formed a S.I.T. to investigate the black money stashed in foreign banks but also at one point in time observed that why shouldn’t the government invoke terror laws against him. His bail was cancelled and he was jailed. His rights which the Constitution gives him were violated by the very judiciary which is supposed to protect tire fundamental rights of the citizens, which includes the accused persons also.
(The author is advocate J&K High Court)
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