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Bjp Flays Move To Curb Public Interest Litigation

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BSCAL

The BJP yesterday opposed the governments reported move to enact legislation curbing the use of Public interest litigation (PIL) and declared that the party would vote against any such bill.

Leaders of the Congress and the Left did not react but a number of legal luminaries expressed apprehensions that the bill may end up putting judicial redress beyond the reach of the poor, instead of plugging the misuse of this sort of suit for political ends.

The bill could stipulate that litigators must deposit Rs one lakh to move the Supreme Court and Rs 50,000 to move the high courts and could also be fined if the charges were proved to be false. Senior counsel P P Venugopal says the amount suggested will be beyond the reach of the common man.

 

Many politicians have been uneasy about the judicial activism of the past couple of years. The bill to curb PILs and another bill to reclaim the executives right to appoint judges stem in part from a new determination in government and Parliament to set limits.

The BJP was the only party to immediately take a stand against the proposed bill. Referring to the newspaper report, party spokesperson Yashwant Sinha said that by trying to enact a legislation, the Union government intends to strike terror at the hearts of those who intent to bring PIL. He described it as a draconian measure to protect those in power.

Public interest litigation is an instrument that allows citizens to bring unscrupulous individuals to task and secure justice for the common man. To blunt this weapon is akin to tampering with the hapeus corpus device by the Emergency regime of Indiara Gandhi, Sinha said.

Parliament should not interfere in the functioning of the court by framing conditions for use of PILs, he held. Leave the issue to the court to decide how to curbs on frivolous PILs, he said. He pointed out that there have been instances when the courts have fined or ordered imprisonment of people filing such PILs.

This Bill would encourage corrupt politicians and bureaucrats to commit gross human rights violations and violate the law of the land under the belief that there action culd not be brought under judicial scrutiny, he said he felt.

The law of the land has been enriched by the institution of the PIL, which he said, sometimes proves to be the only effective method for people to secure justice at large when all other doors are closed. The move to curb PILs is still pending cabinet approval, though there is talk of it being introduced during the budget session of Parliament.

The Union cabinet had already decided last year to reclaim the governments right to appoint judges. The law ministry is now examining ways to implement that decision.

The Steering Committee had also discussed the issue when leaders suggested that a judicial commission should be entrusted with judges selection rather than the Chief Justice or the executive doing it.

Until 1993, it was the executive that appointed judges in consultation with a panel of judges including the Chief Justice of India and two other senior judges. The Cabinet used to recommend names to the President who in turn used to make the appointments.

This practice changed after 1993 when a full bench of the Supreme Court interpreted the term in consultation with to mean in concurrence with senior judges.

Ever since, the legislature has completely abdicated its powers to the judiciary in appointment of judges.

Now the process is initiated by the Chief Justice of India who, in consultation with his two senior most colleagues recommends names to the President for formal appointment.

A secretary to the government confirmed the move but denied this being done with the intention to check judicial activism in the country. He said that appointment of judges was one of the most important responsibilities of the government and it must bear it. He gave the example of the USA where the President appointed judges and the Senate cleared the appointments. Same was case with other developed countries.

Whatever be the intention behind the change, the issue is likely to raise some debate coming as it is at a time when the country is passing through a phase of judicial activism.

In its enthusiasm for setting just about everything in the country right, the judiciary has even faced flak in Parliament from MPs who felt certain remarks against elected representatives were too casual and derogatory and painted all of them black.

The move comes at a time when the Chief Justice of India A M Ahmedi is set to retire soon and a large number of vacancies are to be filled up in the Supreme Court. However, the change in Constitution is unlikely to be effected before the next Chief Justice of India takes over.

The history of judges appointment in the country is dotted with occasional but major controversies. Former Prime Minister Indira Gandhi was accused by a section of public opinion for packing of benches with secularistic and socialistic people.

While some feel seniority should be the sole criteria for a judge to become the Chief Justice of India, others feel other factors also should be taken into account, otherwise there are Chief Justices appointed for verty short periods.

Before Emergency twice there was supersession in appointment of Chief Justice. The first one was at the time of bank nationalisation, and the second during emergecy when justice H R Khanna was superseded. He later resigned his job.

While the Constitution talks of appointment of judges by the government but in consultation with the judges, in practice it has been either imposition of the the govenments will or imposition of the will of the judges (post 1993), said an official.

Prior to 1993, there was a consensus that consultation does not mean concurrence. But in 1993 there has been a somerrsault in the opposite direction.

In Subhas Sharma vs Union of India the Surpeme Court took the view that this majority view shoulld be considered by a larger constitution bench. A bench of nine judges was constituted to examine this issue. Seven out of nine of this bench decided that consultation meant concurrent or consent. Ever since the practice is that the Cheif Justice initiates the process, and the understanding is that in case of dispute over names his views should prevail.

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First Published: Feb 15 1997 | 12:00 AM IST

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