C. S. Vaidyanathan is an eminent senior advocate, Supreme Court of India. He was Additional Solicitor General of India (1998-1999), Advisor to the President, the Union Internationale des Avocats (UIA) International Association of Lawyers – (1997- 200) and Regional Secretary, South Asia, UIA, since 2000. Vaidyanathan appeared before the Justice Jain Commission that inquired into the assassination of late Prime Minister Rajiv Gandhi and Justice J.S. Verma Commission set up to suggest amendments to Criminal Law for expeditious trial in the wake of the 2012 Nirbhaya Gangrape. He appeared for Ram Lala in the Ram Janma Bhumi case.
In an interview to Parmod Kumar, Vaidyanathan spoke on the contribution of the judiciary in broadening and deepening the fundamental rights of the people, judicial appointments, importance of basic structure doctrine, issues facing the judiciary, large pendency of cases and apprehensions and fears of the judges.
Q. Looking back in the 77th year of independence, what is the contribution of the Supreme Court in expanding and deepening the ambit of fundamental rights particularly the peoples right to life -Article 21 – and free speech Article 19.
A: Seven and a half decades is not too long a time in the history of a nation. More so, when we got freedom from subjugation and are evolving as a democracy. I would think the judiciary has played a stellar role in broadening and deepening the rights of citizens over the years since independence.
Starting with the affirmation of abolition of Zamindari, despite hesitation to give liberal interpretation in its initial years, the judiciary started expanding the right to life and liberty, freedom of speech and other rights enshrined in the Constitution.
The initial reluctance to interfere with censorship, right to meetings and the like, gave way to a liberal recognition of such rights. There was flowering of the right to privacy, and liberty during 1960 under the then Chief Justice K. Subba Rao.
Though there was again a setback during the emergency (25 June 1975 21 March 1977), the decisions immediately before the emergency and thereafter in the context of preventive detention or bail jurisprudence brought about a sea change and paved the way for what today is accepted in regard to right to life, rights of an undertrial, right of a prisoner and so on.
The court recognized the right to travel in the Maneka Gandhi Case, right to privacy (Puttaswamy Case), right of sexual orientation of their own choice (Navtej Singh Johar Case) and so on.
Q. Concerns have been voiced over the government stonewalling judicial directions relating to transparency in its functioning, appointments, protecting environment, the ever-increasing presence of lawmakers with criminal antecedents, and the judges are targeted…
A: In a democracy with limited powers conferred on the three organs by the Constitution, there are bound to be pulls and pressures and friction. The checks and balances, built into the Constitution, enable the Supreme Court to function as a watchdog The entrenched bureaucracy has not been happy with it.
The politicians who had emerged from the freedom struggle were not concerned with running a government with an eye on how to win the next election. But the years after 1967 saw the successful political parties fighting to survive 5-year terms and to get back to power. This meant that the approach of the political leaders to institutionalise the powers of the political executive by the Supreme Court and other courts has not been so favourable.
Very often it is said that an unelected judiciary cannot dictate terms to the elected representatives and the leaders of the people. This conflict will continue. Some use temperate, moderate language; some may be harsh but such criticism is not something which will disappear.
The Supreme Court has to discharge its constitutional role notwithstanding the attempts to stonewall its decisions.
But what is of concern is the troll Army (on social media) unleashed in the recent past against the courts and individual judges who discharge their duties in accordance with the role expected of them under the Constitution.
The leaders of political parties have a duty to control such trolls and mindless criticism.
A more challenging course of action is to have an informed citizenry. A pro-active electorate is an exante solution which addresses the problem at the root level.
Q. What are the issues facing the judiciary at present, at all levels?
A: I would rate that the fear complex that has set in amongst judges, more particularly in the district judiciary and the High Court, is a very sensitive and at the same time, a very disturbing issue facing the judiciary. There is tremendous onslaught on a judges psyche if the judgment that he delivers is not acceptable. The media rushes to judgment on a judge.
Of course, the media now judges the case even before the judgment by courts. There are politically active lobbies which are really not looking at the larger perspective of the impact on the judiciary and launch attacks on individual judges.
The troll armies inspired by political parties and organizations target the judges and their families. These have had a severe impact on the independent functioning of the judiciary.
Q. You have mentioned the fear complex that has set in amongst judges. Can you elaborate?
A: The progress of technology has made such mass responses to be easily disseminated and such reactions coming in with frightening rapidity, unlike in the past. They have immeasurably impacted the independence of the judiciary as you can see from the way judges are fearful of granting bail even in deserving cases, the judges being reluctant to stop punishment being meted out by mobs. These are very perturbing. This is borne out by the huge addition to the workload in High Courts and the Supreme Court by way of bail applications.
Q. Mounting backlog of cases, judicial vacancies, is there a solution?
A: Yes, the backlog of pending cases of almost 6 crore in a country of 140 crore is a massive burden. At the rate at which the pendency is increasing unless some drastic solutions are forthcoming, I dread what we will face when the country completes 100 years of independence if you are going to be burdened with 20-25 crores of pending cases at that time. It is as good as denial of justice to a large section of people as such long delays in resolution of disputes is not good for citizenry and for social peace. Incremental changes wont solve the problem.
I would think that all three organs – the legislature, the executive and the judiciary – are responsible for such accumulation of cases. Mindless legislation without judicial impact assessment have contributed to a large pile up of cases. Just take one instance of Section 138, Negotiable Instruments Act (cheque bounce cases) they alone contributed to almost 50 lakh cases which have now been slowly brought down to about 35 lakh cases.
The courts too should be less technical and procedurally oriented and should try to expedite the solution of disputes.
Q. Ever since the coming of the collegium system, the appointment of judges has been mired in a feud between the government and the Supreme Court. Is there an alternate acceptable and credible solution to the issue?
A: The collegium system came about on account of mounting concerns of political interference in the appointment of judges in the High Court and the Supreme Court. The collegium system has not been perfect. It can do with changes. The NJAC was an attempt to reform the appointment of judges to the higher judiciary but was struck down….I would think that the NJAC with some changes may gain acceptability from the court if the majority of the decision makers in the NJAC are judges with representatives from the Government and the leader of Opposition.
Q. There are concerns amongst the people that certain contentious issues, before the court, involving government decisions, are kept on the back burner for years together.
A: The people who man the judiciary come from the very society of which we are a part. It consists of a mosaic of different cultures, different opinions and different political leanings and there is bound to be some impact on the judges by what is happening every day.
But let me tell you this, the perception of the people today is that hardly any meaningful discussion or debate takes place in the legislature and the permanent executive is vastly indifferent and not so sensitive to the problems of the common man. On all these counts the judiciary stands heads and shoulders above both the political executive and the permanent executive as also the legislature. In my view the acceptability of the decisions of the court, the standing and the esteem of the court, has not been affected in any manner. People still consider the judiciary as their only hope for redressal of the grievances, though it should be the last resort.
Q. Views on bulldozer justice?
A: Bulldozer justice is antithetical to Rule of Law. Rule of Law is our ancient dharma and current Constitutional dharma. Under the Indian Constitution, every person is presumed innocent until proven guilty. Bulldozer justice effectively reverses this principle, by punishing people before they have even been convicted of a crime. Second, bulldozer justice is often used as a form of collective punishment. This means that the punishment is meted out to entire communities, even if only a few members of the community are actually involved in the crime. Third, bulldozer justice can have a devastating impact on the lives of the people affected.
Q. Is the doctrine of the basic structure of Constitution founded on a debatable jurisprudential basis and open to review?
A: It is incorrect to say that the basic structure of the Constitution is founded on a debatable jurisprudential basis. The basic structure tends to protect the characteristics and components of the Indian Union which were thought to be indispensable by the founding fathers of the nation. The basic structure tends to provide the right balance between flexibility and rigidity whereby the Constitution effectively responds to changing realities without compromising the foundational principles of the Indian Union.
Also, the basic structure is a much-needed check against a possible autocratic dispensation. If such limitations on the amending power of the Parliament are not there, then, a day may come when it will be made a criminal offence to criticize the government in power and the citizens may not be left with their basic inalienable rights the fundamental rights.