Monday, August 2, 2010

Controversy over judges’ remarks

BRP Bhaskar
Gulf Today

Talkative judges, testy politicians and sensational media can make a deadly combination. As the cacophony that reverberated through Kerala last weekend showed.

It all started with Justice S Siri Jagan castigating the government for failing to comply with a high court directive to act against illegal quarrying in the Malayattoor and Neeleswaram areas.

He had before him two writ petitions, including one filed by a citizens’ group named Grama Samrakshana Samithi, seeking action against those carrying on quarrying in land allotted by the government for agricultural purposes.

When the matter came up earlier the court had ordered cancellation of the patta (title) of land where quarrying was on. It also asked the government to recover from the land owners the cost of the granite that had been quarried and to ascertain whether the Mining and Geology department had quarrying licences unlawfully.

The government informed the court that the pattas had been cancelled but sought time to submit a report on the loss to the state and the role of Mining and Geology officials.

Giving expression to the court’s displeasure at the government’s tardy response to the court’s directive, the judge wondered whether it was working for the benefit of politicians and mafia gangs. In a pointed reference to the inaction of the police, he pointed out that the court could issue a directive to call in the army if the government was unable to maintain law and order.

Those were harsh words but, then, it is not unusual for judges to express displeasure in strong terms. The government was, however, upset as it had been subjected to such criticism often in recent times.

In a measured response to Justice Siri Jagan’s remarks, Home Minister Kodiyeri Balakrishnan said judges should introspect on the propriety of such comments. His party colleague MV Jayarajan, who is already under the scanner for attacks on the courts, let loose another harangue.

In an unprecedented action, Advocate General Sudhakar Prasad called on Chief Justice J Chelameswar to convey to him the government’s displeasure over repeated adverse comments by judges.

The Supreme Court had recently expunged similar remarks made by two other judges of the Kerala high court.

While hearing bail applications of the accused in a case of attempted murder last year, Justice V Ramkumar had observed that law and order in the state was in a shambles and that many criminals came from the Home Minister’s constituency. On an appeal by the state government, the Supreme Court ruled last month that the comments were unnecessary, ill-timed and uncalled for.

Last week the Supreme Court removed from an order of Justice K Padmanabhan Nair an observation that the sandalwood mafia’s influence appeared to extend to the office of the Forest Minister.

The decision came on a petition by KP Viswanathan, Forest Minister in the then United Democratic Front government, who had resigned in the wake of the court’s stricture. The apex upheld his contention that the high court should not have made such an observation without hearing him.

While in the former case expunction came in just one year, in the other the process took more than five years. As Viswanathan has pointed out, had the decision come sooner he could have returned to the Cabinet.

Political parties generally take a narrow view of judges’ remarks which are incidental and not binding. The opposition sees them as a stick with which to beat the government.

The Communist Party of India-Marxist, which is crying hoarse over Justice Siri Jagan’s comments, had hailed Justice Padmanabhan Nair’s remarks against Viswanathan.

Such remarks by judges, referred to as obiter dicta, receive undue public attention in Kerala as the media, aware of their sensational worth, play them up. Many mainstream newspapers displayed Justice Siri Jagan’s comments under eight-column headlines at the top of the front page.

There is a case for introspection, as suggested by Kodiyeri Balakrishnan, but not by judges alone. The judges must certainly ask themselves whether the impact of obiter dicta was not diminishing as a result of overuse. The politicians must ask themselves whether they are not overreacting to them. Above all, the media must ask themselves whether they are serving the best interests of the society by dwelling too much on casual comments which have only ephemeral value. -- Gulf Today, Sharjah, August 2, 2010.