Commentary/Mani Shankar Aiyar

There are 25,000,000 cases pending in our courts. Judicial activism is abstracting from the problem of this magnitude of judicial inactivism

In the other case I would like to recall, Imran Khan was taken to court by two fellow-cricketers; for several days in succession, cricketing cognoscente around the world watched with fascinated interest the unfolding of the case; hearings were continuous; as soon as they were over, the jury went into recess for a few house, returned and pronounced its verdict, to be followed within minutes by the presiding judge's sentence.

Here, when courts are not granting stay orders, they are reserving their judgments. In the aquaculture case, one of the most meretricious practitioners of judicial activism took ten months between reserving judgment and pronouncing it.

No wonder there are 25,000,000 cases pending in our courts. I have deliberately given the figure in numerals because the bald expression 25 million perhaps fails to convey in mere words the magnitude of the problem. Judicial activism is abstracting from the problem of this magnitude of judicial inactivism by focusing on the involvement of recognisable political names in a small fraction of the cases pending in our courts.

During 1996, these cases have involved, apart from havala former prime minister Rao in the Lakhubhai Pathak, JMM and St Kitts cases; Jayalalitha and her ministers in a whole sheaf of cases filed in Tamil Nadu courts; Kalpnath Rai; H K L Bhagat; Sukh Ram; Satish Sharma and Sheila Kaul. In 1997, one might confidently expect this line-up of politicians to extend to Laloo Prasad Yadav and the political patrons of the Indian Bank chairman, M Gopalakrishnan. Plus whatever -- if anything -- comes out of the Bofors papers now deposited in the kind custody to 'Tiger' Joginder Singh. There is also the outside possibility that after the Jain Commission report is out other politicians might find themselves on the judicial anvil.

In 1996, virtually none of the political cases moved beyond the stage of granting or refusing bail. Yet, such was the drama which judicial activism built around the question of bail that the great unwashed public might be forgiven for thing that judicial remand is what crime and punishment is all about. I am not a jurist and have never studied the law. But I have it one the authority of at least one former Chief Justice of India that it is only when there is a clear and tangible possibility of the accused either absconding or tampering with evidence that bail should be refused. Otherwise, it should be granted as a matter of routine.

In the instant case, was there anything a defeated and discredited former prime minister could do about doctoring the evidence available to a pickle king who says that a decade ago he neither paid the former prime minister nor received any favour from him? What equally could the same ex-statesman have done in the present concatenation of events that he did not have ample opportunity of doing between the time he was external affairs minister and then prime minister for a leisurely long five years?

And what can he, out of power, have done about fiddling with documents relating to political payments allegedly made several years earlier and, if made, certainly several years before he demitted office? Yet, to squeeze what humiliation was possible out of the spectacle of a former prime minister mounting the witness-box to sign his bail bond, the country was subjected for months to wrangling between the Bench and the Bar over the purely procedural question of judicial remand.

Yet, because judicial remand involves incarceration in a jail cell, remand has come to be generally regarded as 'being sent to prison' -- and, therefore, tantamount to punishment for a crime in regard to the substance of which judicial proceedings have not even begun.