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The Year the Judiciary Intervened to 'Displease'
by Rana Ajit Bookmark and Share

New Delhi, Dec 30 (IANS) This was the year when the country's highest court assumed a proactive role as it often came into confrontation with the executive and the legislature in the pursuit of what the chief justice termed as upholding of "constitutional provisions".

As Chief Justice Y.K. Sabharwal, who lays down office Jan 14, put it: "In the very nature of our duties, someone is bound to be displeased but that is unavoidable... It is the constitutional duty of the Supreme Court to keep the executive and the legislature within the limits provided by the constitution.

"The judiciary has only emphasized constitutional provisions, and (their) true spirit by highlighting the express as well as implied intention of the constitution draftsman, which for some reason or the other remained unimplemented at the hands of the executive," added Sabharwal, who will be succeeded by India's first Dalit chief justice, K.G. Balakrishnan.

Sabharwal had a point.

Many a times during the year, the apex court had to intervene in various matters merely because of the inaction of the government.

Be it the sealing of commercial establishments in the capital operating out of residential neighborhoods, reservations for the underprivileged in educational institutions or a controversial law relating to illegal immigrants in the northeast, or its ruling on a cash-for-questions scam involving MPs, the Supreme Court's judgements often treaded on the toes of the powers that be.

No doubt the apex court's missionary zeal to clear the capital of the clutter of illegally running businesses led to many shutdowns and some violence, but this only served to point to years of executive inaction that resulted in the mess.

Then, the Supreme Court annulled a controversial executive notification that surreptitiously revived some controversial provisions of the Illegal Migrants (Determination by Tribunal) Act, (IMDT) relating to the hordes of alleged Bangladeshis staying in Assam and other northeastern states without valid papers. Ironically, the court had held the IMDT Act in July 2005 as being unconstitutional.

It is due to this tendency of the government to revive laws struck down by well considered judicial verdicts for their illegality that the apex court has begun examining the scope and ambit of its power of judicial review of the laws ensconced safely in the ninth schedule of the constitution.

During 2006, the Supreme Court also delivered a spate of rulings on the issue of quotas for various groups of citizens. For instance, it said the creamy layer among the Scheduled Castes and Scheduled Tribes should be excluded from the quota ambit so that the benefits of reservations reached the most needy ones among them.

But then, the apex court even ended up committing an error that many say was an inadvertent one.

While adjudicating the question of the rationale behind providing for 27 percent reservation for other backward castes (OBC) in higher educational institutions - in the absence of any reliable data on the OBC population - it demanded a parliamentary committee report on the subject, even before it was tabled in parliament.

Realising that the issue involved the privilege of members of parliament, the court suitably amended its order.

Similarly, while hearing a petition against the expulsion of some MPs for taking money to ask questions, the Supreme Court ended up issuing notice to Lok Sabha Speaker Somnath Chatterjee. The issue was eventually resolved to the satisfaction of both sides.

But then it's never the apex court's contention that it is always right as Chief Justice Sabaharwal himself admitted while responding to a youngster's question.

"Why is the Supreme Court supreme?" asked the child at a function to celebrate Children's Day, the birthday of India's first prime minister Jawaharlal Nehru.

"Because it is final, not necessarily because it is right. Every human being and every institution has limitations. No institution is infallible, but since we are final we are called supreme," Sabharwal said. 

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