Over the years, the courts have changed the face of justice in India and focussed on issues where the executive has failed in its duty
In any system of governance, the judiciary is always an essential part of civilised life. In Indian history, too, kings played a very important part in dispensing justice. In the days of yore, population pressure was less, crimes were few as people were more law-abiding, resources were available in abundance and the system of justice was not stretched like it is today. By and large the judicial system followed the diktats of the rulers and it sufficed. However, with the advent of democracy, modern jurisprudence developed. Independent jurisprudence got a big boost after the Magna Carta was signed by the King of England in 1215. Now, people in most parts of the world recognise the judiciary as an independent pillar of Government. It is complementary to the executive and the legislature but independent from the other branches of Government, as judicial accountability enshrines the principle of neutrality.
The beginning of codified common law in India can be traced back to 1726 when a Mayor’s Court in then Madras, Bombay and Calcutta was established by the East India Company. Needless to say, the courts changed the face of justice in India and focussed on issues where the executive failed in its duty. This judicial assertion started from the Kesavananda Bharati case when it ruled that basic features of the Constitution cannot be changed. The enunciation of the doctrine of Public Interest Litigation (a relaxation on the traditional rule of locus standi) by Justice PN Bhagwati opened the courts to socially-disadvantaged sections of society and course correction in the functioning of the executive.
In the recent past, many landmark judgments in the field of environment have endeared judges to the people of the country. Notable among them were Justice Kuldip Singh and Justice AN Verma. The 1996 Godavarman case turned the trajectory of forest and wildlife management in India. Despite the enactment of the Forest Conservation Act, 1980 and the Wildlife Protection Act, 1972, the lackadaisical attitude of the Central and State Governments put forests and biodiversity at great risk. Interventions by courts in the last 24 years forced executive agencies to act for the smooth implementation of constitutional provisions for the conservation of forests and wildlife resources.
India was one of the earliest nations in the tropical world to implement working plan provisions for managing forests sustainably. However, the working plans were almost forgotten by it. The Supreme Court, through its interventions, streamlined forest management in the country and forced respective governments to prepare and regulate management of forests through working plans. Now the results are visible on the ground.
Similarly, rampant mining in forest areas is being closely monitored by the apex court. This positive action of the Supreme Court struck a balance in restoring the constitutional obligation of the executive. Yet another instance of excellent intervention relates to declaring Ganga River a live entity by the Uttarakhand High Court. Such decisions have touched the lives of millions of our citizens. What is most significant in this regard is the recognition of the rights of those who cannot speak for themselves like trees, animals and rivers which are crucial for sustaining life on Earth. The establishment of the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) in the country, which now has an impressive collection of nearly Rs 50,000 crore in its kitty, was possible on the direction of the Supreme Court.
In yet another epoch-making intervention, the apex court came down heavily on the real estate-politician-bureaucrat nexus in Noida. A Supreme Court Bench, headed by Justice Arun Mishra, sent a stern message to those involved in the Amrapali housing projects. The builder Anil Sharma, who was allegedly in league with politicians and officers of the Noida Authority, swindled more than Rs 8,000 crore of homebuyers’ hard-earned money. This crime was perpetrated under the noses of those who were supposed to protect the interest of the people. The problem with our governance system is such that it gleefully ignores the sufferings of the people at the hands of criminals and the corrupt. The Supreme Court has been relentlessly trying to restore faith in the rule of law among the 40,000 hapless homebuyers while the executive with all its power has failed miserably on all counts. The court had appointed a receiver for the case, tied up funds from banks and asked the National Building Corporation to complete the projects. The promoters of Amrapali are cooling their heels in jail for the last six months and their properties are under auction.
The vital question is why does the executive fail in its duty and why does the judiciary have to step in? The answer lies in the lopsided democracy we follow, wherein only vote-fetching and Government formation are a priority of our political masters and public interest takes a back seat. Because of this the remits of the judiciary are being redefined. The judiciary, however, also needs to reinvent itself on certain issues concerning quick delivery of affordable justice so that it does not fall into the same rut like the executive.
(The writer is a retired civil servant)