The Supreme Court, the final court of appeal, no doubt, too is not infallible. Increasingly, it betrays signs of hubris, which may have already hollowed out other limbs of the state.
Regardless of the reasons how and why some get appointed as judges—the ranting of Justice Karnan of the Calcutta High Court being only the latest reminder—a number of pronouncements of the apex court have been, to put it politely, inexplicable
Before we come to a persistent reading of Article 142 of the Constitution to expand the ambit of judicial powers far beyond anything that the Founding Fathers might have contemplated, let us note without any hesitation of contradiction that the order to shut down liquor vends, including bars in five-star hotels, within 500 meters of highways seems to be curious.
If anything Advani could be guilty of, it was of the grave risk he undertook by gathering an emotionally frenzied crowd of over three lakh.
The sooner they revisit the order the better it would be for the millions of people who otherwise stand to lose their livelihoods. The potential loss of revenue has already pushed various state governments to denotify highways as arterial roads. The open defiance of the court is akin to a murder convict changing his name to stay free. At least in this case, mis-declaration of hundreds of kilometres of roads may be rationalised to bypass a palpably consequential order. One can only hope for the apex court to revisit its arbitrary decision.
But the travesty of the court possibly overreaching itself under the auspices of Article 142 is fully on display in the decision to reverse the Allahabad High Court order absolving L.K. Advani and others of the charge of conspiracy in the Babri Masjid case. Consider the chronology. The disputed structure was razed by frenzied but faceless karsevaks on 6 December 1992. Eighteen years later, in 2010, the Allahabad High Court cleared Advani, Murli Manohar Joshi, Uma Bharti and a few others of the charge of conspiracy. Aside from a lack of any evidence, the order was based on sound logic. Prosecution invariably fails to establish conspiracy when large mobs go berserk, indulging in arson and other acts of violence, often including murder.
If anything Advani could be guilty of, it was of the grave risk he undertook by gathering an emotionally frenzied crowd of over three lakhs. To expect all of them to stay within the confines of discipline the Sangh cadres are supposedly proud of maintaining, especially when the hated target of their years-old campaign stood teasingly within a handshake distance, was unreasonable. The biggest culprits in this regard were the state and Central administrations, which allowed such a crowd to gather in the first place. Besides, eyewitnesses galore have recorded how Advani was distraught with anger and grief when a section of the crowd went berserk, defying his repeated cries from the podium to desist.
But the SC order reopening the conspiracy trial against Advani defies precedent. The CBI had failed to challenge his acquittal within the stipulated period, but the apex court condoned the delay. Again, neither the CBI nor the apex court showed any dispatch, pushing the case on the backburner. From 2011 until now, the hearing was adjourned 31 times, with neither side in a hurry to bring it to conclusion.
However, three years after Modi took over as Prime Minister, the apex court, invoking powers of Article 142, has shown extraordinary zeal in not only reviving the conspiracy charge against Advani, but fixing a time limit of two years for the trial to be completed. Given that twenty-five years have elapsed since the fall of the disputed structure, another two years will probably mean nothing for the accused. But it is the reputation of the court is at stake.
Why cannot the apex court bring itself up to pronounce on the correctness or otherwise of the Allahabad High Court order, which had awarded the land around the sanctum sanctorum in Ayodhya to Hindus way back in 2010? If the SC cannot conclude the relatively simple appeal in nearly seven years, how does it now expect the lower court to pronounce a verdict in a far more complicated case of criminal conspiracy and mob violence in two years, especially when a number of accused and eyewitness had moved on to the other world?
To return to Article 142, even someone like Kapil Sibal, a top lawyer who himself has often got the court to invoke it, now feels constrained to counsel restraint. It is notable that the court chose to disregard urgent pleas that it desist from relying on the omnibus power under that Article, meant to be used rarely, if at all, to revive the case against Advani. It is that Article (mis)using which the court has deigned to pronounce on the height of dams, the width of roads, the viability of rival auto fuels, competing technologies in the environmental and telecom spheres, and to grab control of Indian cricket and much more. In a thousand other ways, the judiciary has usurped the powers of the executive and the legislature.
It may be that politicians are not exactly the paragons of virtue. But how long will the judiciary go on stepping on the toes of the other branches to virtually make laws instead of merely interpreting them before there is a backlash? Reports of wrong-doing in higher judiciary might not figure in the media, but nonetheless these are credible and leaven daily conversations in the well-appointed drawing rooms of Lutyens’ Delhi. Self-correction through restraint and moderation may be easy. Otherwise, a determined executive might feel constrained to restore balance as per the original scheme of things envisaged by the Founding Fathers.