Given the sharp decline in the collective moral fibre of the society, it could not be that the judiciary would remain unaffected. Without in any way seeking to bring it into disrepute even remotely, all right-thinking people must acknowledge the certain fall in judicial standards. 

The Supreme Court, the final court of appeal, no doubt, too is not infallible. Increasingly, it betrays signs of hubris which may have already hollowed out other limbs of the State.

Regardless of the reasons how and why some of the more unwholesome characters get appointed as judges -- - the boorish ranting of Justice Karnan of the Calcutta High Court being only the latest reminder -- - a number of pronouncements of the apex court have been, to put it politely, inexplicable. Frankly, even common sense seems to have eluded some edicts from on high.

Before we come to a persistent gross misreading of Article 142 of the Constitution to expand the ambit of judicial powers far beyond anything that the Founding Fathers might have contemplated, let us note without any hesitation of contradiction that the order to shut down liquor vends, including bars in five-star hotels, within 500 meters of highways seems to be an out- and-out Tughlakian folly.

Most curious, nay, crude ways are now devised to mock at their Lordships’ supreme wisdom as enshrined in the said order. The sooner they revisit the firman the better it would be -- - for their own dignity and, of course, more crucially, for the millions of people who otherwise stand to lose their livelihoods. The potential loss of revenue has already pushed various State governments to denotify highways as arterial roads. The open defiance of the court is akin to a murder convict changing his name to stay free. At least, in this case, misdeclaration of hundreds of kilometers of roads may be rationalized to bypass a palpably wrong-headed order. One can only hope that good sense will prevail for the apex court to revisit its arbitrary decision.

But the travesty of the court overreaching itself under the auspices of Article 142 is fully on display in the decision to reverse the Allahabad High Court order absolving L K Advani and others of the charge of conspiracy in the Babri Masjid case. Consider the chronology. The disputed structure was razed by frenzied but faceless karsewaks on December 6, 1992. Eighteen years later, in 2010, the Allahabad High Court cleared Advani, Murli Manohar Joshi, Uma Bharti and a few others of the charge of conspiracy. Aside from a lack of any evidence, the order was based on sound logic. Prosecution invariably fails to establish conspiracy when large mobs go berserk, indulging in arson and other acts of violence, often including murder.

If anything Advani could be guilty of it was of the grave risk he undertook by gathering an emotionally frenzied crowd of over three lakhs. To expect all of them to stay within the confines of ~anusashan~ the Sangh cadres are supposedly proud of maintaining, especially when the hated target of their years-old campaign stood teasingly within a handshake distance, was unreasonable. The biggest culprit in this regard were the State and central administrations which allowed such a crowd to gather in the first place. Besides, eyewitnesses galore have recorded how Advani was distraught with anger and grief when a section of the crowd went berserk, defying his repeated cries from the podium to desist.

But the SC order reopening the conspiracy trial against Advani defies logic and precedent. The CBI had failed to challenge his acquittal within the stipulated period but the apex court condoned the delay. Again, neither the CBI nor the apex court showed any dispatch, pushing the case on the backburner. From 2011 until now, the hearing was adjourned 31 times, with neither side in a hurry to bring it to conclusion.

However, three years after Modi took over as prime minster, the apex court, invoking powers Article 142, has shown extraordinary zeal in not only reviving the conspiracy charge against Advani but fixing a time limit of two years for the trial to be completed. Given that twenty-five years have elapsed since the fall of the disputed structure, another two years will probably mean nothing for the accused.

But it is the reputation of the court is at stake. Why cannot the apex court bring itself up to pronounce on the correctness or otherwise of the Allahabad High Court order which had awarded the land around the sanctum sanctorum in Ayodhya to Hindus way back in 2010? If the SC cannot conclude the relatively simple appeal in nearly seven years, how does it now expect the lower court to pronounce verdict in a far more complicated case of a criminal conspiracy and mob violence in two years, especially when a number of accused and eyewitness had moved on to the other world? There is clearly something that does not meet the eye.

To return to Article 142, even someone like Kapil Sibal, a top lawyer who himself has often got the court to invoked it, now feels constrained to counsel restraint. It is notable that the court chose to disregard urgent pleas that it desist from relying on the omnibus power under that article, meant to be used rarely, if at all, to revive the case against Advani. It is that article (mis)using which the court has deigned to pronounce on the height of dams, the width of roads, the viability of rival auto fuels, competing technologies in the environmental and telecom spheres, and to grab control of Indian cricket and much more. In hazaar other ways, the judiciary has usurped the powers of the executive and the legislature.

It may be that politicians are not exactly the paragons of virtue. But how long will the judiciary go on stepping on the toes of the other branches to virtually make laws instead of merely interpreting them before there is a backlash? Reports of wrong-doing in higher judiciary might not figure in the media but nonetheless, these are credible and leaven daily conversations in the well-appointed drawing rooms of Lutyens’ Delhi. Self-correction through restraint and moderation maybe easy. Otherwise, a determined  executive might feel constrained to restore balance as per the original scheme of things envisaged by the Founding Fathers.

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Advani nominee of non-BJP bloc?

Speculation that the SC order reviving the conspiracy charge against Advani effectively shuts himout of the presidential race seems credible, especially given that Modi cannot be overly keen to see the vaunted Margdarshak watching over him from the big house on Raisina Hill. 

Modi, we understand, might choose to put someone like Pratibha Patil in Rashtrapati Bhawan. Advani will be 90 in November. That too is a factor, though it must be acknowledged that he continues to be both mentally and physically agile. Curiously, Nitish Kumar’s initiative for a common candidate of the non-NDA parties may not overrule an attempt to rope in Advani as an all-party candidate, should Modi refuse to sponsor him. Kumar met Sonia Gandhi last week to devise a common strategy. 

Right now the electoral college is evenly balanced, with the non-BJP block enjoying a thin edge. Whether or not Advani agrees to become a candidate of the non-NDA grouping, Kumar can be trusted to try, especially when that would cause a ~dharam sankat~ to lots of people in the BJP when voting for president. It is a thought which may or may not have crossed Nitish’s mind, though given that he and Advani had both tried to block Modi’s bid to become NDA’s prime ministerial candidate would suggest that such a scenario cannot be entirely ruled out.

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Buying time with judicial help

While still on judiciary, here is proof that extra-legal influences work. Take the case of the Taj Mansingh hotel. Strictly going by the letter of the law, the courts had no business to entertain the plea for extending its lease when at the end of 33 years it stood expired in October 2011.

But a hot-shot lawyer paid in tens of lakhs per hearing ensured that six long years were wasted before the NDMC could finally get the go-ahead to re-auction the property to the highest bidder, with the Taj itself open to  participate. Of course, all of us who had often patronized the centrally-located hotel sympathized with the Taj, but could anyone in his right frame of mind try and defy the lease document prescribing the reversion of the property to NDMC at the end of the lease period? 

Frankly, the courts ought to have rejected the Taj plea to bypass the lease agreement at the first available opportunity. Law finally prevailed but only after the Taj had managed to virtually extend its 33-year original lease by six more years taking recourse to legal stratagems.







Virendra Kapoor is a Delhi-based journalist. The opinions expressed in this article are the author's own and do not reflect the view of Asianet Newsable