With the decline of Parliament, political debate has moved to television studios, the Jantar Mantar premises and social media. Another front for political wrangling these days is courts. With the writ courts opening wide their doors to anyone claiming to have a grievance on behalf of the public, there are wild allegations thinly clothed as public interest litigations (PILs).
Last month, the Supreme Court dismissed a petition, argued by top lawyers, because it smacked of politics. Earlier, the Andhra Pradesh High Court had also rejected this petition packed with political content. The Supreme Court said in its judgment in the case, Y S Vijaya vs Union of India: “The high court can and indeed ought to refuse exercise of jurisdiction in all such cases where it finds that the petitioner has not come to the court with clean hands or that the proceedings have been launched to achieve a political end or settle political scores. Suppression of material facts and political mileage [that a petitioner may attempt] to draw out of proceedings of the court are relevant factors that can and ought to weigh with the court while determining whether it should or should not exercise its jurisdiction. This is so especially when the writ jurisdiction is sought to be invoked by a person who is in active politics and who is ostensibly moved by political compulsions or vendetta rather than a genuine concern for maintaining purity in public life.” Two years ago, there was an effort to “streamline” the PIL movement. The Supreme Court, in the case, State of Uttarakhand vs Balwant Singh, laid down eight rules to discourage those moved with oblique motives and to verify their credentials. It had asked the registry of each high court to send a report about the steps it has taken in following the above rules. But there has been little compliance of these orders.
However, genuine PIL has changed the face of politics. The PIL movement was started in the 1980s by the judges of the Supreme Court. They recognised that it was their constitutional obligation to provide access to the marginal sections of society. The movement has since turned into a revolutionary force and passed three stages. It started dealing with the right to life of the inarticulate people in jail or in illegal custody. In the second period, it encompassed public grievances against environmental degradation and quality of life. In the current phase, the court attempts to maintain probity and transparency in public life and integrity in governance.
In the last few years, issues that should have been debated in Parliament have moved to the Supreme Court. The Hawala scam was the earliest example. The most recent one was the 2G spectrum scam, in which Cabinet ministers and politicians have been scalded by this legal weapon in the hands of its rivals. Former Cabinet ministers A Raja and Suresh Kalmadi received their comeuppance from the courts, not Parliament. A few days ago, Finance Minister P Chidambaram had a providential escape from what appeared to be a legal snare laid by his rival.
Last year, former Maharashtra Chief Minister Manohar Joshi was seared by a PIL. He was accused of changing the rules to give land allotted for gardens and schools in Pune for the construction of residential buildings. The developer was none other than his son-in-law. On these grounds, a PIL was moved in the Bombay High Court. It ordered the government to initiate criminal investigation against the chief minister, the minister for urban development and the municipal commissioner. It also ordered the demolition of the structure.
Joshi and others appealed to the Supreme Court, but it affirmed the finding of the high court with even more force. “This is a case,” said the judgment, “where the personal relationship of the developer with the chief minister was apparently used to obtain permission for construction without following the process of law... It was clearly a case of showing favouritism by going out of the way and circumventing the law...It is nothing short of fraud on one’s power and also on the statute.”
Another PIL involving political corruption was decided in Akhil Bhartiya Upbhokta Congress vs State of MP. Former Chief Minister of Madhya Pradesh Uma Bharti was excoriated for bestowing land for a favoured organisation. The judgment read: “The distribution of largesse by the state and its agencies should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion.”
It is such increasing political venality and a dysfunctional Parliament that have led to a situation in which public grievances are straightaway taken to the court. As a result, judges are perceived to be ruling the country, as Chief Justice S H Kapadia hinted last week. Activists might respond that when everything fails, the judges must do their constitutional duty.
