What, When Courts Go Wrong?
Without going into the merit and justificatory status of any order of the Supreme Court or of any other court down the line, keeping "public interest" in view, it looks overdue and worthwhile to bring it to the core of debate why the judicial authority of courts is being consistently undermined, more often than not, by governments or the people's representatives in the country. When Chief Ministers or other top functionaries or representatives of public interest utilities start giving a damn to court verdicts, sending fie even to the eventually occurring "contempt of court", where do the courts stand? Do the courts, then, need 'public support' in such cases or they should be left open to face public 'ridicule'? However, our justice system suggests, right or wrong, justice is justice when it comes from a court, one that remains pious in its reach and content, so long as it is not turned down by a higher judiciary.
I had the opportunity to discuss the subject to a renowned former SC judge who, in his times, passed several epoch-making judgments. Without being unduly perturbed by what happens in the aftermath of a controversial verdict, this legal luminary dismissed all that as a "natural reaction of people who find their interests hit and rights curtailed" when a court order supposedly flows into a "prohibited area, inflicting irreconcilable damage on the aggrieved party, irrespective of what, in public view, constitutes Justice." Well, as our democratic society turns more and more modern and advanced, shedding all old, time-tested golden precepts, most of us don't give a hoot about what George Martin once said, " Harsh justice is still justice."
Two days after the Patna High Court declared the liquor ban in Bihar illegal, calling it "draconian and unjustifiable in a civilized society", the Nitish Kumar govt notified on Gandhi Jayanti "an even more stringent Prohibition and Excise Act to keep the state dry." An unfazed CM is firmly resolved to challenge the Court order that struck down the state's prohibition law. While the state govt will soon file a special leave petition in Supreme Court, Nitish seems to have his point, as does the High Court. CM claims that the prohibition law "has brought great social transformation in the state...People should see the post-prohibition peaceful environment in villages. Earlier, poor people used to spend three-fourth of their daily wages on liquor. Prohibition is saving thousands of crores of rupees as people are not wasting on alcohol now. This will also boost the state's economy as public will, instead, invest in business." With his sight fixed on his poll manifesto, this CM looks "fighting" for the extreme poor, and the rest of other low-income group people, who recklessly spend their earnings on booze, as the High Court has its gaze focused on people's civil liberties.
While Bihar still has the Supreme Court to conclusively accept or reject its prohibition law, Karnataka, which looks militating against a Supreme Court order, has none except a larger bench of the same court to hear its plea. It's open defiance of the apex court order to release 6,000 cusecs of Cauvery water to Tamil Nadu for six days has no legal precedent. There's a new twist to the Cauvery water-sharing debate that has left the two prominent states of peninsular India in bitter turmoil. The court had reprimanded Karnataka against any further defiance in releasing water to Tamil Nadu. The court had also ordered the Union Govt to form a Cauvery Management Board to mediate a solution between the feuding states.
In the midst of Karnataka's open disobedience of apex court, it's review petition now goes to the same court which may or may not redress its grievances. But instead of seeking remedy via an enlarged bench, does it lie in order to undo the effect of the court order through a resolution of the State Assembly? Why does any tussle arise between the people's powers and the powers of courts, when both Constitution and the courts are the byproducts of people's power in our democracy system? The problem is germane to both Karnataka and Tamil Nadu CMs Siddaramaiah and Jayalalitha respectively wanting to get Cauvery water beyond their legitimate needs.
But what can the highest court of the land do against a democratically elected state govt if the latter chooses to persistently defy the court orders? In a recent order, the court asked the UP Govt to appoint Lokayukta within 3 days or be ready to face tough action. Mostly, states fall in line when SC warns of ‘severe consequences’. But the court can't sack the defiant Chief Minister even if he still says 'no'. However, the court can slap a legal lawsuit against the defiant govt. The matter then goes to a larger bench which can fix the quantum of punishment on the state, say a heavy fine. But if the matter doesn't rest there, the aggrieved state can move the President who can form a tribunal to give final decision. But if the defiance still persists, the President can sack the state govt by invoking his executive powers.
Laws are meant to maintain order, discipline and stability in society. But when, in the process of interpreting the laws, courts militate against the people's power or when the laws come sharply stinging 'justice' in the eyes of the aggrieved, handling this piquant situation becomes extremely challenging. Such cases may be too many with their individual demands and points of contention, but the courts are expected to do justice in each case, whatever be the set of available evidence. And eventually in some knotty cases, verdicts may run into controversies. The question then arises: In a tangle following a Supreme Court order on a state's petition, where one party 'gains' and the other 'loses', can the Union Govt really play an effective role in our existing federal system to bring the contending parties to peace, especially in a situation where two different political formations, stationed on diametrically opposite political platforms, are ruling in states and at the Centre?