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Mainstream, VOL LIX No 45, New Delhi, October 23, 2021

Justice Lokur’s Strong Advocacy of Protective Role of Judiciary Strengthens Democracy | Bharat Dogra

Saturday 23 October 2021, by Bharat Dogra

Recently eminent jurist and former judge of the Supreme Court of India, Justice Madan B. Lokur, made three important points which have been widely welcomed by all citizens devoted to strengthening democracy in India (interview with Karan Thapar, the, October 6 2021). Firstly he stated that the reason why our Supreme Court has been called the most powerful court internationally is that it derives its strength from the people. The constitution provides fundamental rights to people and if these are threatened they can go to the court and ask it to protect these rights. It is this role which makes it the people’s court and gives it its most important and true strength which needs to be honored and taken forward, with care and in the right spirit.

Secondly he very clearly stated that the constitution definitely provides the right to protest peacefully and without arms and this should be protected.

Thirdly he clarified further that a peaceful protest or protest movement can continue in a perfectly legtimate way even if the issue regarding which the protest is taking place is under the consideration of the court.

These observations will be heartlily welcomed particularly by the ongoing farmers’ movement as these were made in the context of answering some questions relating to this movement, but of course these have a much wider relevance in terms of protecting people’s right for peaceful protest and hence have been very widely welcomed for their significance in strengthening democracy at a time this is really needed.

These much needed remarks of Justice Lokur also bring back memories of several very inspiring examples when judiciary has come to the rescue of badly suffering and threatened people in India in various contexts. Many gains in food security arrangements can be attributed largely to decisions given by the judiciary. The Supreme Court not only gave important directions but had these monitored carefully and then gave additional directions when required. Similarly in the case of urban homeless persons the neglected task of providing adequate shelters in many cities got a big boost from directions of the Supreme Court of India.

Poor people threatened by demolitions or wrongful repressive actions have often received substantial relief even from lower courts. There was a time when the protective legislation taken up for construction workers was being badly neglected but the strong and important directions given by the Supreme Court ( as well as some other courts) resulted in improved implementation of these laws and some important provisions of these laws could be protected ( however one should add that a lot of uncertainty has arisen after the four new labor codes came in, as stated time and again by labor activists).

While such actions on behalf of judiciary have always been welcome and very useful, this responsibility of the judiciary increases particularly in exceptionally difficult times such as the ongoing pandemic. Hence a more protective role of the judiciary should be available to the weaker sections in these difficult times.

There is widespread agreement that that the conditions of weaker sections in India ( as well as in many other developing countries) have suffered rapid deterioration in recent times in urban as well as in rural areas during the last 16 months or so of pandemic , lockdowns and related factors. There is increasing hunger and malnutrition and forced curbing of essential expenditures among them. Education of an unprecedented number of children has been disrupted. There is fall in income and employment as seldom seen before, and greater uncertainty than ever before as well as the accompanying mental stress. There is greater difficulty in accessing medical care for several serious ailments. Significant excess mortality as a combined impact of several factors is a reality that can not be denied.

In such conditions of course the government has the primary responsibility of taking adequate steps to provide very significant and adequate relief to weaker sections but in addition the judiciary, particularly at higher levels, also has a very important role and responsibility in this context, particularly in conditions which exist in India in which various governments , despite initiating some relief measures, have not been able to come up with a response which matches the crisis of weaker sections of such enormous and unprecedented proportions.

On the one hand the judiciary can motivate, nudge and direct government towards policies and programs which are very important for meeting urgent needs of people in the form of food, livelihoods, medical care and shelter. In such exceptionally difficult times, such directions may lead to saving many precious human lives. The judiciary can obtain the services of those who are known to be most well-informed on these issues ( this can include retired officials, academics, judges, lawyers and social activists at senior levels ) to monitor the emerging situation carefully and to suggest the most relevant measures, in consultation with implementing government agencies regarding what they consider to be doable.

On the other hand the judiciary can also monitor the situation carefully from the perspective of checking and stopping those avoidable actions which unnecessarily increase the distress of people in difficult times. This can be in the context of human rights violations, demolitions of slums /huts as well as other evictions resulting in homelessness and/or loss or worsening of livelihood . While all these should be minimized even in normal times, in times of a pandemic there is even more compelling need for avoiding this and the judiciary should help in ensuring this.

Another important area of entirely avoidable distress relates to unjust actions taken on the basis of identities like caste, religion, ethnicity and instigation of sectarian conflict on this basis. Here again when its monitoring reveals wrong actions on the part of anyone the judiciary should take important action to provide relief and maintain peace.

One hopes that such a noble and really needed role of the judiciary can bring very important relief to weaker sections and if to achieve such a great and important role the judiciary even has to initiate some self-corrective actions it will not hesitate to do so.

The judiciary has also shown admirable sensitivity to environment issues in some contexts. However there is need for greater caution in interpreting environment protection in such ways that the weaker sections are not harmed and instead can be mobilized for environment protection. For example if some forest area suffered some encroachment in certain circumstances but now the weaker sections are well-settled there, then instead of ordering their eviction their continued stay there can be made conditional to their contribution for greening of surrounding area and keeping in view their poverty some funds can also e allocated to them for this under various government schemes.

Fortunately the judiciary could benefit in the past from the advice of several important experts who were very well informed about the problems faced by weaker sections and workable, practical solutions. This is particularly needed today in such difficult situations where it is important to reconcile the needs of environment protection with the protection of weaker sections.

(The writer, a journalist and author, is Honorary Convener, Campaign to Protect Earth Now. His recent books include Planet in Peril and Protecting Earth For Children)

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