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E-Mail this column to a friend 50 years of solitude-II

Executive Editor Saisuresh Sivaswamy on 50 Years of the Republic.

As the nation commemorates the 50th anniversary of being declared a Republic, after arguing last week that it is time to review the Constitution, it is also time to reflect on the tectonic change that has taken place among the four pillars of democracy. There has always been a tussle for power among these, with the executive and the legislature often ranked on one side and the judiciary and the media ranked on the other. Given that the first two represent the sum and substance of official power, and that the latter two exist to keep a check on the misuse of such power, such an array is but natural.

As the Republic remained in its infancy, the balance of power continued without a hiccup. But 1975 changed all that. Not only did it awaken the people to the ugliness of politics, not only did it remove the last vestige of the figleaf that had been draped on the system, not only did it lead to the nation's rude loss of innocence, it unalterably changed the equations among the four columns on which the Republic had till then rested.

For the first time, the judiciary discovered that it had the right to unseat a sitting prime minister. For the first time the media realised that it was not just an official adjunct, that its need, right to inform the people overrode every other consideration. After 1975, things have never been the same, nor will they ever be the same again.

But, two decades of judicial and editorial activism have been enough to show that the change has not been all that welcome. Administration by PIL has replaced governance, while the fourth estate has gone in for an image makeover, shedding popular concerns in its search for the dwindling readership base.

At fifty years of age, we are in a strange era, where every decision of the government, its agencies, has been thrown open to judicial scrutiny. Sacking of an admiral? File a PIL. Holding of elections? File a PIL. Was a popular deity born at a particular spot? File a PIL. Things have come to such a pass, that a judge, the judicial bench today is expected to be an expert on anything and everything.

Two top of the head examples should suffice to show the bizarre nature of the situation. The Maharashtra government decides to erect flyovers all over the city to ease traffic congestion, and towards recovery of the expenses decides to levy a toll from motorists. Given the unpopularity of the decision, the matter is promptly taken to court where it is upheld.

But that is not the end of the matter: what this decision means is that a motorist, who lives in the suburbs and who will use the flyovers en route to driving to the city's epicentre will not pay a paisa as toll, but a vehicle owner in the distant suburbs driving into the city limits, will shell out the toll, even though he will not use the flyovers. But since the matter before the court was whether the government was empowered to collect the toll -- and not if the toll was iniquitous, unfair, etc -- has conferred legitimacy on a wrong decision.

The other is the judicial verdict over the cellphone tariff mess. While calling party pays/free incoming calls is the norm across the world, in India the matter is still hanging fire -- months after it was announced that along with an increase in licence fees the cellphone operators will levy from customers they will also offer free incoming calls. Thus, while for the past few months users have been shelling out four times more money as licence fees, they have yet to get the concurrent benefit that was promised to them -- thanks to the courts finally leaving it to the operators to decide if and when they can offer this facility.

As the enforcement of stricter pollution norms across the country has shown, in most cases all it should take is for the government to pull its act together and not let the courts take over its functions. In the emissions case, the statute was all there, enacted and gathering dust for years before the courts spurred the executive to act on the legislature's decision.

This case is evidence of the rot in the system. The government does not want to govern, or take uncomfortable decisions, unless prodded into doing so by the legislature. While the executive has thus effectively withdrawn itself, the yielded ground is being occupied by the judiciary.

On one hand, this leads to an imbalance in power. While the judiciary's role is to check excess of power on the part of the executive and the legislature, at no time was it intended to supplant the government's decision-making. On the other, the involvement of the judiciary in quasi-judicial roles hits at its core function: namely, the dispensing of justice to the citizen. Given the huge backlog of cases - the Tulasa rape case, where the first hearing was held recently, 18 years after the case was filed and after the victim herself had reportedly died -- is indicative of the challenges before the judiciary.

Such a situation -- a timid executive and a over-reaching judiciary -- has come about thanks to the Constitution whose adoption we celebrate on January 26. Ergo, review it to reflect the current realities.

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