Commentary/Mani Shankar Aiyar

Politicians will hold the judiciary in respect and awe only when the judiciary shows itself to be totally indifferent to the siren call of tomorrow's headlines

Not surprisingly, the public loses interest before the actual trial begins. Indeed, much of the public looks upon a trial after remand as a form of double jeopardy -- and, therefore, not acceptable in terms of natural justice. Thus, the same Tamil public that was baying for Jayalalitha's blood is now persuaded that she has paid the price of her sins by being stashed away in judicial remand for a few weeks.

The insistence on jailing her before trying her has only given her the opportunity of returning to the political arena and clawing her way back to office. Yet, what should be the true ends of stern justice -- remand for a few days or conviction with an adequate sentence?

If judicial activism were to focus on itself, instead of grabbing headlines by focusing on the shortcomings of others, our judges would see that there is no more effective way of dealing with political corruption than instant, continuous hearings leading to immediate convictions -- or exoneration, as the case may be. That is the way there will be political consequences to judicial decisions.

My objection, then, to the version of judicial activism to which we have been subjected in 1996 is not that it is targeted on politicians, but that it lets politicians so easily off the hook by making the issue judicial remand instead of expeditious prosecution. I also charge judicial activism with playing to the gallery by focusing on out-of-office politicians.

Why, for example, is the CBI not being hounded to file charge-sheets against Karunanidhi in respect of the well-documented charges against him levelled by the Justice Sarkaria commission of inquiry? Or even in regard to the heinous charge of being an accessory both before and after the fact to the murder of EPRLF leader Padmanabha?

If judicial activism descends, as it has tended to do, to merely becoming part of the national pastime of politician-baiting, our corrupt politicians are neither going to get their just desserts nor is our politics going to get any cleaner. It is not in scoring points against the executive or showing up the legislature that the judiciary can best do its duty by the rule of law.

It is by doing what is entirely within the province of the judiciary to do that the cause of justice will best be served: ensuring continuous hearings and expeditious verdicts, especially when specific cases have a larger public bearing. This the judiciary is not doing. And when, as in the case of Satish Sharma and Sheila Kaul, sentences are passed with barely-concealed vengefulness, the door is merely opened for judicial review, preferably after the blood-and-thunder judge in question is sidelined by superannuation.

In the long run, nothing will more discredit the well-deserved reputation of our higher judiciary as the last remaining bastion of decency and democracy than activism when there is public frenzy and quiescence when there is public indifference. The case of A R Antulay is a significant pointer. When in 1981-82, Arun Shourie earned his spurs -- and Justice Lentin his -- by getting Antulay indicted and thrown out of public life for 12 long years, the public cheered both the crusader and the Daniel come to judgement.

By the time the Supreme Court exonerated Antulay of every single charge, the public had lost all interest in him. No one can give Antulay back the 12 long years he lost in the wilderness. For a politician, that is quite as long a sentence as life imprisonment for a murderer. A life sentence does not last much longer than 12 years. The difference is that a murderer serves it after being found guilty. Antulay served it before being found innocent. Is this justice?

Politicians will start holding the judiciary in real respect and even awe only when the judiciary shows itself to be totally indifferent to the siren call of tomorrow's headlines, defuses instead of encouraging publicity in politically sensitive cases, ensures the expeditious trial of cases involving politicians, and shows itself to be unswayed by the public mood in finding politicians innocent or guilty.

Unfortunately -- and, if this persists, tragically -- judicial activism has, perhaps unbeknown to itself, allowed itself to become the handmaiden of political opportunism. Unless judicial activism turns the spotlight soon upon itself, there is every danger of tomorrow's judge being held in the same contempt as today's politician.

The way will then be cleared for a takeover of the country by the forces of fascism. It happened in Europe inthe Twenties and Thirties. It could happen in India well before the Twenties and Thirties of the 21st century. Unless the judiciary saves itself -- from itself.