Indian Judiciary
Published in B&E-22 Feb 2007
The 9th Nail!
For a change, this treatise is not about criticising our already and horribly short staffed judiciary (who, most strangely continue to be adamant about not demanding additional investments from the government for ramping up the number of judges), but about their pertinent struggle against the Indian government, whose litany of calumnious performances in social development can perhaps only be beaten by their irreverently rapscallion-like behaviour in attempting to be thorough untouchable when it comes to their haphazard and arbitrary decisions.If only our politicians had paid heed, the judiciary wouldn’t have been up in arms against the legislature for tainting and polluting the 9th schedule of the Constitution with vote gathering devices devoid of passion for able governance. If only our mendicant politicians were visionary enough to foresee the challenges posed to the State by the forces of globalisation, they would have mended their errant ways and made genuine efforts to win the hearts and minds of people. The net outcome of the political perfidy heaped on the common man is, he has lost all trust in the guardians of politics and sees judiciary as his only saviour in trying and troubling times. Have the two lost trust in each other’s ability to honour the commitment made to the nation? The fire brand leader of the CPI(M) & Rajya Sabha MP, Brinda Karat, commenting to B&E, refrains from using harsh words like ‘loss of trust’, but she adds that both, legislature and the judiciary, “must spell out the approach being adopted to interpret the constitution.”This raises a pertinent question: Why is the tussle between the two important arms of the state taking an ugly turn? Who is under pressure and of whom? According to an international legal expert working for the government (speaking on conditions of anonymity), the “fault lies with the politicians who don’t enact laws before entering into international treaties, like the WTO. The result is that when these treaties begin to hurt the common man, the judiciary steps in an activist role.” Such an explanation shows that, it is the government, which is under pressure to undo all that it had undertaken during the nationalisation era. The political leadership seems to be in tearing hurry to join the liberalising ‘heard’ because they don’t intend to look laggards in a largely globalising world. This would obliviously mean that the Judiciary is taking up cudgels on behalf of the ‘aam aadmi’ (common man) and protecting him from the vagaries of markets. If this was true then the communists would certainly have stood behind the courts. Ironically, Brinda Karat, says “The judiciary has usurped the discretionary power vested with the legislature to protect the needy and the downtrodden.” But Abhishek Singhvi, a noted lawyer and Congress Rajya Sabha MP, told B&E that the current judicial activism “should not be seen in terms of class struggle.”
Whether the judiciary is acting in interest of people or the markets is something which is debatable, however, what is becoming apparent is that a new kind of pressure is certainly being exerted on the judiciary to move towards the trans-nationalisation of law. This tension, according to Balakrishna Rajagopal (writing in the Leiden Journal of International Law), is evident in the current debates about global governance: The international law is seriously contemplating “about compliance, or the interplay between international law and domestic law.” The compliance issue comes to fore particularly in cases related to enforcement of anti-terror laws and the protection of human rights. And when it comes to striking a balance between national security and human rights, the National Commission of Human Rights clearly states that “Undoubtedly, national security is of paramount importance... Any law for combating terrorism should be consistent with the constitution, the relevant international instruments and treaties, and respect the principles of necessity and proportionality.” It is important to note here that the Indian judiciary is guided by the principles of Dualism (see box) – national laws take precedence over international treaties. The international pressure on government (there are roughly 75,000 human rights violation cases registered in various courts across the country) is evident in the fact that for past six years the annual human rights report card has not been forwarded to the United Nations. Such large number of cases only shows the dilemmas, which both the judiciary and the government face when it comes to striking a balance between “military necessity” and the need to protect human rights. Certainly, on one hand, the West expects all the countries to be tough against terrorism and on the other hand the West-based civil rights groups want the state to be more affirmative on human rights.
As we move further down the road towards global integration, the pressure on judiciary to adhere to international laws will further accentuate. The day is not far when one would see the judiciary being forced to take a stand on national foreign policy issues, too. Consider a hypothetical case: The Indian government, under some tacit agreement with the US, decides to send troops to Iraq. Under such circumstances, the army dismisses a group of five officers for refusing to go to Iraq. The gentlemen file a case against their dismissal, on the grounds that they are being pushed into a war which is internationally acclaimed to be illegal. How will the courts react to the situation? These situations are not far fetched in today’s world where the rules are being rewritten under the pressure of international law. Take the case of Ireland, where last year the courts acquitted five saboteurs, who had damaged the US navy plane bound for war in Iraq in 2003. Similarly, the German courts dismissed the charge of insubordination against a German army major, who refused to obey orders that he felt would make him a part of aggression against a sovereign nation. A closer look at the judiciary reveals that it certainly is under the pressure from the powerful civil rights groups, the media and the prevailing consensus in favour of privatisation and liberalisation. Yes, the world is changing; globalisation is redefining the limits of nation-states. The question we are asking here is, where does judicial activism stop? Who is to define the limits of judicial activism? The 9th schedule was surely an instrument to curtail the activist propensity among the judges on issues of import to the weaker sections of the society.
International legal eagles
Whether the judiciary is acting in interest of people or the markets is something which is debatable, however, what is becoming apparent is that a new kind of pressure is certainly being exerted on the judiciary to move towards the trans-nationalisation of law. This tension, according to Balakrishna Rajagopal (writing in the Leiden Journal of International Law), is evident in the current debates about global governance: The international law is seriously contemplating “about compliance, or the interplay between international law and domestic law.” The compliance issue comes to fore particularly in cases related to enforcement of anti-terror laws and the protection of human rights. And when it comes to striking a balance between national security and human rights, the National Commission of Human Rights clearly states that “Undoubtedly, national security is of paramount importance... Any law for combating terrorism should be consistent with the constitution, the relevant international instruments and treaties, and respect the principles of necessity and proportionality.” It is important to note here that the Indian judiciary is guided by the principles of Dualism (see box) – national laws take precedence over international treaties. The international pressure on government (there are roughly 75,000 human rights violation cases registered in various courts across the country) is evident in the fact that for past six years the annual human rights report card has not been forwarded to the United Nations. Such large number of cases only shows the dilemmas, which both the judiciary and the government face when it comes to striking a balance between “military necessity” and the need to protect human rights. Certainly, on one hand, the West expects all the countries to be tough against terrorism and on the other hand the West-based civil rights groups want the state to be more affirmative on human rights.
As we move further down the road towards global integration, the pressure on judiciary to adhere to international laws will further accentuate. The day is not far when one would see the judiciary being forced to take a stand on national foreign policy issues, too. Consider a hypothetical case: The Indian government, under some tacit agreement with the US, decides to send troops to Iraq. Under such circumstances, the army dismisses a group of five officers for refusing to go to Iraq. The gentlemen file a case against their dismissal, on the grounds that they are being pushed into a war which is internationally acclaimed to be illegal. How will the courts react to the situation? These situations are not far fetched in today’s world where the rules are being rewritten under the pressure of international law. Take the case of Ireland, where last year the courts acquitted five saboteurs, who had damaged the US navy plane bound for war in Iraq in 2003. Similarly, the German courts dismissed the charge of insubordination against a German army major, who refused to obey orders that he felt would make him a part of aggression against a sovereign nation. A closer look at the judiciary reveals that it certainly is under the pressure from the powerful civil rights groups, the media and the prevailing consensus in favour of privatisation and liberalisation. Yes, the world is changing; globalisation is redefining the limits of nation-states. The question we are asking here is, where does judicial activism stop? Who is to define the limits of judicial activism? The 9th schedule was surely an instrument to curtail the activist propensity among the judges on issues of import to the weaker sections of the society.
International legal eagles
There are two schools of thought when it comes to understanding the relationship between the international law and national law. The Monist theory asserts that there is one homogenous system of law and there is no difference between the national and international law. For the monist, international law is simply part of the law of the land, together with the more familiar areas of national law. Dualists, on the other hand, opine that the international and domestic laws are two distinct entities and that “they exist” side by side, within different spheres of action – the international plane and the domestic plane. Countries like India, Israel, UK and others follow the monist model. The thin line dividing the two streams of law is gradually thinning under the weight of “politics of globalisation” – internationalisation of human rights and environmental issues. The formation of International Criminal court (ICC) in 2003 marked a watershed in bridging the divide. Although India and USA are not members of the ICC, they are actively involved in the evolution of the international legal norms. As the borderless world evolves further, the Monist are likely to be marginalised in coming times.
No comments:
Post a Comment