Supreme Court is Final, but Definitely Not Infallible
By Soli J Sorabjee | Published: 29th December 2013 06:00 AM |
2013 has been a memorable year for more than one reason. It witnessed judicial hyper-activism bordering on the judiciary running the country. It is unobjectionable where the judiciary directs the executive to implement laws made by Parliament when non-implementation results in violation of the fundamental rights of the people for whose protection the law has been enacted. For example, prohibiting employment of young children in hazardous occupations like manufacture of fire crackers. But consider the days spent by the apex court on the issue of red lights on the vehicles of politicians and so-called VIPs and further its ruling about the persons who alone should have that privilege, which is a clear legislative function. One appreciates the underlying spirit of the judgment. Judicial legislation, however, upsets the constitutional balance wheel between the three wings of the State. Besides, the judiciary alone should not be burdened with rectifying all ills of the body politic.
The apex court judgment on Section 377 of the IPC overturning the Delhi High Court judgment was most distressing. The high court did not strike down Section 377 which is needed in case of nonconsensual sex and specially for the protection of young children who are often sodomised. It read down the section so as to make it inapplicable to consensual homosexual relations in private between adults over 18 years of age. To that extent it decriminalised Section 377 which the Supreme Court has recriminalised, thereby permitting the police to knock on one’s bedroom with ominous threats of arrest and prosecution which can be avoided by payment of bribes. The Supreme Court is final but not infallible. Hopefully in 2014, the judgment will be overturned by a larger bench or by appropriate legislative amendment to Section 377.
The election results in Rajasthan, Madhya Pradesh, Chhattisgarh and Delhi bewildered the Congress and political pundits. Defeat of the Congress was not surprising but the extent of its defeat was startling, especially in Delhi where it bagged only eight seats. The BJP emerged as the largest party but declared its inability by itself to form a government. President’s Rule seemed inevitable. But the Aam Admi Party (AAP), which secured 28 seats, sprang another surprise. Despite its prior declaration that it would not take support either of the BJP or Congress, AAP ultimately decided to stake its claim to form government with Congress support. The most novel part is that it reached its decision after ascertaining the wishes of the voters on this behalf by SMS and other means, a majority of whom, we are told, wanted AAP to form the government even if it required Congress support. This is unique ultra-participatory democracy. Arvind Kejriwal, the CM, and his team took the oath of office in Ramlila Maidan. This was an astute move because at Ramlila Maidan the swearing-in was witnessed by hundreds. Kejriwal and his team travelled by Metro and then reached Ramlila Maidan by autos or ordinary cars. Kejriwal has declined security as also lavish official residence because he prefers his modest residential accommodation. Is this all drama to manifest his link with aam aadmi? And how long will he continue in office which depends on continuance of Congress support? And will Kejriwal take crucial decisions by ascertaining the wishes of the voters? We have not hitherto witnessed a Kejriwal and his style of functioning. All said and done, he is a well-meaning honest person. Let us wish him good luck in achieving the goal of a corruption-free government in which good governance prevails.
Let us hope that in 2014 the clear stream of reason does not lose its way into the cacophony of mutual recriminations but ushers in good governance and value-based politics where human rights and human dignity of all persons irrespective of religion, creed, caste, colour and sex are equally respected.
Sorabjee is a former Attorney General of India