The Side Effects of Judicial Overreach When the liver is sluggish and the heart is irregular, the kidneys have to work overtime to flush toxins out of the system. When the legislature ceases to function and the executive is ineffective, the judiciary — as the third organ of the state — feels compelled to act, even beyond the mandate contemplated by the Constitution. When the courts ask state agencies like the police, the CBI, the enforcement directorate and revenue authorities to directly report to them on the progress of an investigation, when committees or expert bodies are constituted by the courts and their recommendations turned into binding orders, when administrative rules and guidelines are promulgated in judgments, when the normal appeal process is cut short, we know that the judiciary is reluctantly discharging the functions of the other two arms of the state. Unlike the legislature, which is paralysed by political compulsions, or the executive, which functions at a painfully slow pace and at times is motivated by extraneous considerations, the judiciary, in full bloom, appears dramatically fast and deadly effective. Public pressure often encourages further judicial intervention, as the executive cowers in fear and the legislature does not even bother to assert its turf. But then, like all things good, judicial overreach also has side effects. Judicial chemotherapy to combat the cancer of corruption comes at a price. How these side effects are impacting the economy is the somewhat amoral question. A national scam reaches its peak. Groups of conspirators are arrested, including ministers and senior civil servants, denied bail, and remain as undertrials for as long as a year. In the US and UK too, white-collared accused are arrested but seldom ever denied bail. Rajaratnam was a free man until his final appeal was dismissed. In all white-collar crime cases, including corruption, arrests are made only after exhaustive investigation is completed and, therefore, custodial interrogation is hardly required. Even assuming it is, it cannot be so for months on end. The only reason why courts deny bail for weeks, if not months, is to appease public anger. The public believes that since convictions take years, denying bail is the only deterrent to the bad and corrupt. This may no longer be correct. Special courts work rapidly on a day-to-day basis like the 2G scam special court, which though running through truckloads of evidence, is expected to hand over its judgment early next year. Whatever the public feeling, should judges play to the gallery? While one’s heart may not bleed for a corrupt politician being denied bail for long, what about a senior civil servant who has had a spotless career and whose integrity is known, being subjected to this ordeal in the twilight of his career, and perhaps when his only offence was his inability to stand up to a corrupt minister? When such a senior civil servant languishes in jail for months, a message goes to all senior civil servants nearing retirement: avoid signing any files of any mega project. There may be multiple reasons for mega projects not moving, but this bureaucratic fear of being personally embroiled is a major one. Fear has also spread among hitherto daring promoters, whose senior management spends hours of productive time in the offices of investigating agencies, lawyers and other advisers. This is not to say the multiple scams are all without any basis. Nor can one deny the role corruption plays in greenfield projects. However, investigative agencies and government law departments themselves are scared of being hauled up and, so, are quick to file a charge sheet, even when the material on record is flimsy and the legal interpretation overstretched. Like a systemic infection, this collective fear of an all-powerful judiciary has dampened entrepreneurial spirits. Entire industries (like mining iron ore) come to a grinding halt due to a blanket court order. The higher judiciary is itself conscious that judicial overreach is not, in the long run, good for the prestige of the courts. Legislators are beginning to unite, across party lines, to overrule decisions by passing laws, which is unhealthy for the respect of the judiciary. The balance between the three wings of the state is sacrosanct. When the kidneys work too hard, they finally fold up and the result is septicaemia. (Source : Eco Times , The writer , Berjis Desai , is senior partner at a national law firm)
Posted on: Mon, 09 Sep 2013 04:54:57 +0000
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