Shaking em Up!

With the executive implementing the court orders on day to day affairs, people in democratic J&K have started imagining severity of life and inertia of the systems in absence of the judiciary. Generally, pro-active courtrooms are directly proportional to the new lows that governance structure touches, analyses Shah Abbas.


Experts are of the opinion that ‘an active Judiciary is a people’s right’ and in the recent times, Jammu and Kashmir people have often seen the judiciary taking over some of the functions of executive. To be more precise, people now rely on Judiciary as far as the implementation of law is concerned, even in some sensitive and people related matters, Judiciary has been made to jump in. This intervention has not remained confined to human rights only, but it has enhanced to the administrative matters as well.

Be it the dog menace in Kashmir, banning of polythene, disbanding the VDCs or the preservation of natural resources, people preferred to seek judiciary’s intervention even when the government’s role in such matters was obligatory.

It is probably because people think that administration acts only after judiciary intervenes.

Pertinently, in recent times High court intervened in getting rare artifacts from other states, which otherwise were supposed to be in the Srinagar Museum.

The government reacted in practical terms only when the matter of child deaths in GB Panth Hospital reached the High Court.

It was again the High court which implemented the order of master plan violations.

The High Court even intervened in the Achen dumping ground which is still a cause of concern for the commoners.

Moreover, in many cases the High Court asks State Human Rights Commission (SHRC) or even Accountability Commission (AC) to intervene.

High court issued order to seize hotel operating without facility of Sewage Treatment Plant (STP) causing hue and cry from the Kashmiri hoteliers.

It was again High court which ordered a CBI enquiry in Sialin massacre. Interestingly, the High court even intervened for de-watering of roads in Srinagar.

High Court also heard two PILs against the use of pallet and Pepper guns in Kashmir against the protesters. The ‘non lethal’ guns have damaged scores of lives so far. The government however defended its use successfully on ‘law and order’ grounds. Still Kashmir High Court Bar Association decided to challenge the single bench verdict, clearly indicating that even being critical to the working of Judiciary, the civil society tries to use it in the matters of public interest.

The frequent intervention of the judiciary in the matters relating to commoners in Kashmir clearly indicates that people rely on courts instead of the government. To many “this phenomenon shows the failure of the government prompting judiciary to take the driver’s seat.”

The government too has now probably felt that people are relying more on Judiciary. That is why the State government according to sources some time back issued a circular to all the department heads and law officers to ensure filing of replies in Public Interest Litigations (PILs) before the High Court in time, failing which action would be initiated against them.

“The laws are already there and they are made by the elected legislatures but unfortunately these lawmakers do not bother to implement many laws pertaining to the common people so Judiciary has to intervene when people want so,” a senior lawyer, wishing anonymity told Kashmir Life, adding “The authorities have miserably failed in a number of ways and they have not come to the rescue of the commoners so they had no other option than to seek judicial intervention.”

But many legal scientists are strongly opposing the trend. They are of the opinion that this phenomenon has badly damaged the democratic system and lawmakers. This trend has made administrative authorities unaccountable.

“I am proponent of the view that supports strict separation of powers so I do not support that Judiciary should intervene in the matters of executive and legislative functions of the state,” constitutional expert and prominent lawyer, Syed Tassadduq Hussain told Kashmir Life.

The experts like Hussain are of the opinion that in a democratic system, it is obligatory upon people to act against the lawmakers if they fail to satisfy the hopes of the masses. “It is for the electorate to remove the executive or the representatives of the legislature if they are inadequate,” Hussain said.

A saying stands, “The hallmark of a great nation is its institutions. The stronger the ability of these institutions to uphold and preserve fundamental values, the greater the nation would be.”

The founding fathers of the constitution created three arm-Legislature, Executive and the Judiciary- of the state that together were to be the keepers of the ideals of the nation.

Over the past, however, the legislature has become ‘dysfunctional’ as far as people’s aspirations are concerned. No doubt new laws are made every now and then but their implementation is still a dream, leaving people skeptical.

High Court Premises in Srinagar. Pic: Bilal Bahadur
High Court Premises in Srinagar.
Pic: Bilal Bahadur

The active role of judiciary in last few months has left people thinking who actually runs the show – government or courts! Is judiciary now supreme and stronger than legislature and executive?

Many experts think that with no financial autonomy, the Judiciary is perhaps the weakest organ of the State. Yet, the Judiciary has established a dominating position vis-à-vis the Executive, in the ugly turf of war between them. “News headlines are dominated not by the Executive, but by hard-hitting pronouncements of High Court, mostly against Executive action or inaction,” said an Editor of a daily newspaper.

Is ‘judicial overreach’ the consequence of under-performance of the other two State organs, particularly the Executive? And what led to this situation where the Judiciary decides on matters required to be decided by ministers and secretaries? These are the questions to be answered by the government only.

In this backdrop the conflict ragged Kashmir can’t afford to let the Judiciary fail as it is the only ray of hope and protection to the common people against arbitrary actions of the Executive or inaction in a number of issues directly related to the common masses.

The Coalition of Civil Society (CCS), a human rights group active in Jammu and Kashmir, however is of the opinion that people do not look towards Judiciary with any hope at all.

“Common people do not go to the Judiciary, yes the civil society members seldom knock at its doors but not because they trust the prevailing Judicial system or they have some hopes with it, but only because it helps to reveal that the Judiciary can’t do anything,” Khurram Parvez, organizer of the CCS and a human rights activist told Kashmir Life.

He added “Going to courts helps in revealing upon people to what extent judiciary can help them.”

Judiciary has also become an avenue of publicity as well, that is why some people want to take full advantage of it.

“The politicians and other such people actually want cheap publicity by seeking judicial intervention in matters concerning people, but in reality such people do not want anything from the courts nor courts can give them anything,” Khurram said adding “The irony is that people in this part of the world even had to go to courts to seek ex-gratia. Then what happens there, the court also goes through the same legal track which is always there but is not followed by who are at the helm of affairs.”

Justice MM Kumar, CJ of J&K
Justice MM Kumar, CJ of J&K

Not only the CCS, but the separatists also are not satisfied with the working of the Judiciary. Separatist leaders and activists have many cases registered against them so they visit courts regularly in order to defend themselves. But the present proactive role of the Judiciary does not satisfy them as well.

“The Judiciary always provides a helping hand to the government as far as the separatists are concerned, you know what happens when a court passes bail orders in favour of any political prisoner, courts write in their orders ‘release if not wanted in any other case’, paving the way for his re-arrest inside the jail premises,” a senior separatist leader, who was released after a long detention early this year told Kashmir Life.

However, it is only the Judiciary which is being followed by the government despite being one of its institutions. The facts on ground reveal that the Executive has abdicated its duties and the Judiciary is cracking the whip. Many think that it is cracking the whip a bit too much. But the majority does not think so.

An active judiciary is one that takes its task of defending the fundamental rights of the people and their liberties against the ‘slumber’ of the state, earnestly. As far as judges are concerned, it is a matter of mindset. One judge could say that policy formulation is the job of the Executive and Judiciary does not need to intervene while another could believe that even in policy formulation, the Judiciary would need to step in to guard fundamental rights.

The occasion for this often arises when the Executive fails to discharge its statutory, constitutional obligations. As a result of this failure, the fundamental rights of the people are violated. For instance, majority of the people want use of polythene banned in Kashmir keeping in view environmental protection and natural beauty. There are laws to protect the environment but these are not implementing to the extent the special situation of Kashmir demands.

The people of the valley are suffering at the hands of stray dogs and they are victimized by the rising numbers of these dogs in every nook and corner. The government should have acted quickly to protect its people and do the needful even by amending laws if necessary. But when the government failed, the people knocked at the door of judiciary.

Again for instance, there are laws to prevent children from working in harmful occupations. Now there are parents who willingly let their children work because of economic necessities. The factory owners fix the inspectors and the laws that are supposed to protect the children are not implemented. In such cases, a court hearing a complaint can order the state to enforce the laws because not implementing them is the violation of the children’s fundamental right to a healthy life.

A case came up before the Supreme Court of India regarding a care home for women in Patna. The home had very poor sanitation, leaky roofs and the living conditions of the inmates were horrible. The court immediately asked the government to look into it. The court went further by asking the government to appoint a manager and fixed his salary.

The central government in recent past accused the Supreme Court of trespassing into its territory when it ordered it to set up a special investigation team headed by a retired Supreme Court judge to probe black money cases. The government said it was ‘judicial overreach’ into Executive functions and was against the principle of ‘separation of powers’. What the court did was to merely ensure that the investigation be done properly.

Lok Adalat in progress.
Lok Adalat in progress.

There are experts who think the Judicial intervention in the matters of Executive and legislature as ‘disastrous’ for the democratic system.

“The doctrine of separation of power upon which the democratic notions of twentieth century were crafted to create a system of check and balances has been subverted by the Indian constitution itself and as such by blurring the distinctions between the Judicial, executive and legislative functions, the democracy in India has suffered an eclipse as such Judicial intervention in matters of executive and legislative functions will lead to demise of democracy in India,” Hussain opines.

A practicing Lawyer in Srinagar High Court is of the opinion that the power of the Judiciary is to review what the state does, flows from the Constitution itself. “In the Constitutional scheme legislature is not supreme. It is subject to a major limitation that legislation does not violate any fundamental rights or constitutional values,” The Lawyer said.

He however added that Judiciary has to be an impartial umpire to ensure that fundamental rights are not breached and basic constitutional values are preserved. In other words, the chapter on fundamental rights acts as a limitation on Legislature’s powers. “And the court has the power to interpret whether Legislature has disobeyed that limitation or not,” he said.

Another Lawyer who is the member of Kashmir High Court Bar Association (KHCBA) said while talking to Kashmir Life that every fundamental right is not spelt out comprehensively in the Constitution. “For instance, the right to shelter, the right to privacy, the right to go abroad and the right to education have all been worked out through creative interpretation by judges over the years.”

Judicial interpretations are based on the realities of the situation. Every state has to work out its Constitution according to its problems, needs and demands.

In this backdrop the majority of experts are of the opinion that the judiciary cannot remain mute spectator when laws are not enforced and consequently, fundamental rights are violated. If the Judiciary does not intervene, it would be an inactive Judiciary. Of course, the judiciary should not get into road-building and beautification of government buildings, but it should actively intervene whenever rights are violated and currently, the Executive’s lethargy is so persistent that rights are routinely breached.

It is as fundamental to be able to breathe good air and live in a pollution free environment as the right to live. In fact, it is the right to live with dignity. That is why the judiciary was right in ordering Delhi buses to ply only on CNG.

Our Judiciary is partly a continuation of the British legal system established by the English in the mid-19th century based on a typical hybrid legal system, in which customs, precedents and legislative is all components of the law. There are various levels of judiciary in India, different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a strict chain of command of importance, in line with the order of the courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom.

Courts hear criminal and civil cases, including disputes between individuals and the government. The judiciary is claimed to be independent of the executive and legislative branches of government in the Constitution.

The intervention of this ‘independent’ institution in the administrative matters is termed as ‘judicial activism’ by many like Markandey Katju.

Press Council of India Chief recently said that the Indian judiciary was ‘more activist’ and cautioned that ‘judicial activism’ should not be used frequently.

“My own view is that while judicial activism may be a good thing on certain special occasions, there should not be too frequent use of it,” Katju said.

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