Comments on: Back With a Bang http://www.criticaltwenties.in/lawthejudiciary/back-with-a-bang Powered by Webshore Thu, 02 Apr 2015 16:34:10 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Alok http://www.criticaltwenties.in/lawthejudiciary/back-with-a-bang#comment-9293 Alok Wed, 17 Aug 2011 13:16:41 +0000 http://www.criticaltwenties.in/?p=3456#comment-9293 Thanks Shreya! You're welcome. Thanks Shreya! You’re welcome.

]]> By: Shreya http://www.criticaltwenties.in/lawthejudiciary/back-with-a-bang#comment-9290 Shreya Wed, 17 Aug 2011 12:00:45 +0000 http://www.criticaltwenties.in/?p=3456#comment-9290 Great read Alok - thanks for posting this. Great read Alok – thanks for posting this.

]]> By: Sumit http://www.criticaltwenties.in/lawthejudiciary/back-with-a-bang#comment-9051 Sumit Fri, 08 Jul 2011 11:11:16 +0000 http://www.criticaltwenties.in/?p=3456#comment-9051 Does any body have an idea when supreme court announces the names for selected law clerks? Does any body have an idea when supreme court announces the names for selected law clerks?

]]> By: Alok http://www.criticaltwenties.in/lawthejudiciary/back-with-a-bang#comment-9049 Alok Fri, 08 Jul 2011 03:57:10 +0000 http://www.criticaltwenties.in/?p=3456#comment-9049 Thanks Arghya! The picture of the CJI was to intimidate possible dissension into quiescence. Clearly it hasn't worked. :p But, having observed the Supreme Court for the last two years, I can tell you that the Supreme Court has in fact become more selective, but more active in the PILs that it entertains. This is something Kapadia made very clear in the first few weeks of his tenure as CJI; PILs calling for the Court's intervention in any and every matter of public interest were thrown out with costs. Where however, a statutory duty was being violated, or the Government was being callous about implementation of a key law like the NREGA, the Court has stepped in and stepped in strongly. Justice Kapadia has been skeptical of vague and general declarations of Article 14 and 21 violations, but has taken interest where the petitioners have particularized it, and shown continuing rights deprivation on the part of the Government. Motivated PILs, busybosy interventions are being clamped down upon as this example shows. http://www.advocatekhoj.com/library/judgments/announcement.php?WID=504 In the context of the 2G and black money cases, the Court would not have gone into that much detail and monitored in such depth if the Government had been able to convince them, in the first few hearings, of good faith in investigation. As someone who appears with law officers for the Government, I can tell you with some confidence that in 95% of cases (including PILs) the Court takes the Government on its word, and will assume bona fides unless shown otherwise. The point is, that cases like the latter, actually pollute the political process further. Incidents of such magnitude are matters that do genuinely call into question the bona fides of the government on every front and the possibility of the political process *EVER* fixing itself. The Court's intervention, in the 2G scam at least, has given the CBI a degree of independence and confidence to pursue the main accused with intent. It's true, in a lot of other cases implementation remains a problem, but that cannot be an argument for complete inaction, especially when it is not an unfortunate accident that implementation is so poor, and it suits the aims of the political executive that implementation is so poor. Thanks Arghya! The picture of the CJI was to intimidate possible dissension into quiescence. Clearly it hasn’t worked. :p

But, having observed the Supreme Court for the last two years, I can tell you that the Supreme Court has in fact become more selective, but more active in the PILs that it entertains. This is something Kapadia made very clear in the first few weeks of his tenure as CJI; PILs calling for the Court’s intervention in any and every matter of public interest were thrown out with costs. Where however, a statutory duty was being violated, or the Government was being callous about implementation of a key law like the NREGA, the Court has stepped in and stepped in strongly. Justice Kapadia has been skeptical of vague and general declarations of Article 14 and 21 violations, but has taken interest where the petitioners have particularized it, and shown continuing rights deprivation on the part of the Government. Motivated PILs, busybosy interventions are being clamped down upon as this example shows. http://www.advocatekhoj.com/library/judgments/announcement.php?WID=504

In the context of the 2G and black money cases, the Court would not have gone into that much detail and monitored in such depth if the Government had been able to convince them, in the first few hearings, of good faith in investigation. As someone who appears with law officers for the Government, I can tell you with some confidence that in 95% of cases (including PILs) the Court takes the Government on its word, and will assume bona fides unless shown otherwise.

The point is, that cases like the latter, actually pollute the political process further. Incidents of such magnitude are matters that do genuinely call into question the bona fides of the government on every front and the possibility of the political process *EVER* fixing itself.

The Court’s intervention, in the 2G scam at least, has given the CBI a degree of independence and confidence to pursue the main accused with intent. It’s true, in a lot of other cases implementation remains a problem, but that cannot be an argument for complete inaction, especially when it is not an unfortunate accident that implementation is so poor, and it suits the aims of the political executive that implementation is so poor.

]]> By: Arghya http://www.criticaltwenties.in/lawthejudiciary/back-with-a-bang#comment-9047 Arghya Thu, 07 Jul 2011 21:04:36 +0000 http://www.criticaltwenties.in/?p=3456#comment-9047 Alok, well written as always and a superb picture of the CJI to boot! But I disagree entirely with what I see as the general point that you are making- that Indian democracy is in a dangerous situation with failing institutions of governance, the Supreme Court realises it, and is compelled to do something about it. I think the boot now is really on the other foot. This argument could have worked int he 80s with public interest litigation beginning but now there is almost a resignation to the fact that any big public law issue will be brought before the Supreme Court, no matter what. Article 21 and 14 might as well be rewritten to say anything goes; merely the claim has to be made. And while the Court certainly has the best of intentions, it must give government the space to act and that now cannot be by acting itself and then compelling performance but in certain cases not acting at all. It's time the Court got out of the forests, got out of the right to food cases and let the political process take over. Yes, it will stumble, but it must be given the chance to stumble. And for all you know we could be pleasantly surprised. For despite the Court's passionate interventions, implementation on the ground is a mixed record and for all the bluster the results have been marginal. So it's imperative that the Court slowly but surely, not overnight, but perhaps in a little while starts stepping back. It's intervention, no matter how bona fide is primarily more money for the newspapers and little actual change. *I make broad generalisations in this comment, but my criticisms are directed at those cases where the court is not exercising a judicial function. Passing policy orders in Godavarman would be one such example, while striking down UP's land acquisition law would not. Alok, well written as always and a superb picture of the CJI to boot! But I disagree entirely with what I see as the general point that you are making- that Indian democracy is in a dangerous situation with failing institutions of governance, the Supreme Court realises it, and is compelled to do something about it. I think the boot now is really on the other foot. This argument could have worked int he 80s with public interest litigation beginning but now there is almost a resignation to the fact that any big public law issue will be brought before the Supreme Court, no matter what. Article 21 and 14 might as well be rewritten to say anything goes; merely the claim has to be made. And while the Court certainly has the best of intentions, it must give government the space to act and that now cannot be by acting itself and then compelling performance but in certain cases not acting at all. It’s time the Court got out of the forests, got out of the right to food cases and let the political process take over. Yes, it will stumble, but it must be given the chance to stumble. And for all you know we could be pleasantly surprised. For despite the Court’s passionate interventions, implementation on the ground is a mixed record and for all the bluster the results have been marginal. So it’s imperative that the Court slowly but surely, not overnight, but perhaps in a little while starts stepping back. It’s intervention, no matter how bona fide is primarily more money for the newspapers and little actual change.
*I make broad generalisations in this comment, but my criticisms are directed at those cases where the court is not exercising a judicial function. Passing policy orders in Godavarman would be one such example, while striking down UP’s land acquisition law would not.

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