"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, July 28, 2011

Three Judgments

Kalpana Kannabiran has given a composite reading of the recent three judgments (Black Money, Salwa Judum and Delhi Jal Board) of the SC in yesterday's The Hindu. She finds the broad construction of these judgments in the socio-political context and as an infusion of a new vigour in the judicial division of the State.

These three cases unmistakably speak about the need of state intervention and deride state apathy and inaction. The author identifies the judgments as traversing beyond the narrow confines of constitutional law and in the turf of constitutionalism. It is social action that runs through these cases; campaign against state repression, campaign against corruption and movement for dignity of workers.

She expects these judgments to play the role of disciplining the reluctant state to carry out its functions of protection against harm, distribution of good and realization of capabilities.

All in place from a sociologists point of view

A legalistic analysis would place these judgments in the interstices of constitutional law. All the three judgments are located in the failure of executive to either act (Black Money and Delhi Jal Board) or for actions, which cannot be supported constitutionally (Salwa Judum). Indian judiciary seemingly has assumed and has self established legitimacy to act wherever other organs of the state fail. Such actions though fall short to satisfy the theory of separation, have wide acceptance especially by those who perceives the judiciary as the ultimate bastion of justice. The continuously failing executive and legislature, for sure, has only catered to establish such a thought process.

The policies of the government were in question in these cases, precisely the economic policies. These cases also involve adjudication of rights stemming from DPSP.

These cases of course are important, as it has established a trend of contextualizing the judgments in social actions as well as aspirations and for evaluating policies for its constitutionality. It also placed the socio-economic rights under the DPSP in the fore of decision making. All these are capable of going astray in the hands of an undisciplined judiciary.

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