| February 28, 2008 | Thursday | Safar 20, 1429 |
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Time to judge the judiciary?
THE Supreme Court of Pakistan had ordered the judicial murder of democratically elected leader Zulfikar Ali Bhutto. The judgment was split four to three. The Supreme Court of India had endorsed Indira Gandhi’s Emergency rule, four to one, by suspending the fundamental right to habeas corpus.
The Supreme Court in Pakistan has coexisted comfortably with mediaeval Hudood laws, even if they were recently made somewhat less draconian. The Supreme Court in India has accepted Hindutva as an expression of Indian culture bereft of any communal connotation generally ascribed to the term.
When the Supreme Court in India did try to do a good job, for example by ruling that a Muslim divorcee was entitled to financial support from her former husband as any other divorced woman was, the state subverted it by enacting an inferior law to please the orthodox clergy.
In recent days Pakistan has witnessed street protests led by lawyers for the ‘restoration of the judiciary’ to the pre-Nov 3 status. The impression conveyed is that the judiciary was free or even agreeable prior to the cut-off date when it was repressed or deposed. In India, on the other hand, an important movement is gaining appeal led by lawyers and former senior members of the bench, to make judges more accountable to the poorest and also less biased in favour of big business. Indeed, the Supreme Court has been erratic in important spheres whereby it has tended to undo the good account it gave of itself on other occasions.
For example, it could be easily discerned that all is not well with the Indian judiciary simply by looking at the Supreme Court’s excellent decision to move some of the sensitive cases of communal violence from Gujarat to Mumbai. Implicit in the decision was a lack of trust in the judiciary of a state that was so comprehensively swamped by its communal prejudices.
And yet, last week, the same Supreme Court publicly berated Teesta Setalvad, a well known woman activist who has been tirelessly involved in giving legal support to Gujarat’s riot victims. Who is this Teesta Setalvad? The court asked when she was not even present to defend herself. It would not hear the petition if she was representing anyone in the cases before it, the court said.
Can a court in any democracy render a petitioner persona non grata? And all this because Ms Setalvad had written an article pleading for an early hearing of bail applications, pending for four years, of people, including a completely blind inmate, who were arrested in the Godhra train burning case in 2002. The court’s remarks surprised many, including Lok Sabha Speaker Somnath Chatterjee.
A two-day convention on ‘The Judiciary and the Poor’ organised by the Campaign for Judicial Accountability and Reforms that represents senior former members of the bench and the bar, looked deeper into the malaise. “The judiciary of the country,” the convention noted, “is not functioning as an instrument to provide justice to the vast majority of the people in the country.
On the other hand, most of the judiciary appears to be working in the interest of wealthy corporate interests, which are today controlling the entire ruling establishment of the country. Thus, more often than not, its orders today have the effect of depriving the poor of their rights, than restoring their rights, which are being rampantly violated by the powerful and the State.”
Have the judges in Pakistan, both the ones installed by the presidential fiat and the ones that the lawyers’ movement wants to restore, overcome the state’s overt leaning towards a dominant economic worldview? If not, is there room to learn from the efforts underway to improve the quality of justice for the teeming millions in India?
To begin with, the judicial system of the country is not even accessible to the vast majority of the people, who are poor. Is it different in Pakistan? Last week’s convention in Delhi explained that accessibility was only part of the problem. “This is because of distance, expense and the procedural complexity of the system. It cannot be accessed without lawyers, without whom they cannot even enter the system. Obviously, the poor cannot afford lawyers. In fact, a poor person accused of an offence has no hope of defending himself in the present judicial system and is condemned to its mercy. That is why so many poor persons spend more time in jail as under-trials than the maximum sentence that can be imposed upon them for their alleged crimes.”
Even worse than the lack of access is the increasingly elitist and anti poor attitude of the majority of the judges, particularly of the Supreme Court, according to the Delhi convention. Among those who endorsed the view were former Justice Krishna Iyer, grassroots activists Aruna Roy, Arundhati Roy, Medha Patkar, Dr Anoop Saraya and Prashant Bhushan.
“The ideology of the courts today, as reflected in their judgments, is more right wing and reactionary than even the government, which is functioning as an agent of powerful corporate interests. The judiciary has remained largely impervious to the daily and widespread indignities heaped upon the poor.
Thus when the poor are deprived of their land and natural resources on which they survive, without any rehabilitation, the courts have, barring few exceptions, refused to interfere, even when they are petitioned on behalf of these people, and even when such dispossession is for the benefit of private corporate interests.”
The courts recently ordered the eviction of poor slum dwellers without rehabilitation on the ground that the occupants did not legally own the land on which their shanties were put up, and sometimes on the ground that they are situated on the banks of the River Yamuna or on the Ridge both environmentally sensitive areas of Delhi.
“But when shopping malls come up on the Ridge, or the powerful Akshardham temple comes up on the same banks of the River Yamuna, all kinds of other flimsy excuses are trotted out to allow them.”
The courts have also ordered the removal of hawkers from the streets of several towns, again without a hearing, without rehabilitation and in violation of their right to livelihood. They have ordered the removal of rickshaw pullers from the streets of Delhi in a similar fashion. “These are actions which even the governments dared not take because of their democratic accountability, but could be taken by a judiciary which is totally unaccountable.”
There has been a steady dismantling of labour protection laws at the hands of the judiciary as it has refused to implement the Contract Labour Act and ‘creatively reinterpreted’ various labour laws in favour of big business.
“In one judgment, the Supreme Court has gone so far as to say that labour laws should be interpreted in line with the economic policies of the government!” Thus, they have achieved for the government what it could not get done legislatively because of the lack of consensus in parliament. Surely the picture could not be much better in Pakistan, regardless of the cut off date that has hogged much of the debate if there was one.
The writer is Dawn’s correspondent in Delhi.
jawednaqvi@gmail.com
