Commentary/Mani Shankar Aiyar

Judicial activism has certainly given politicians an outstanding opportunity to settle scores -- but has it advanced the cause of justice?

The way things are going, if 1996 was the Year of the Judge, 1997 might well prove to be the Year of the Judiciary's Comeuppance.

Because all this frenzied judicial activism we have been subjected to since the hawala scandal broke exactly a year ago seems to be leading nowhere in regard to actually putting corrupt and criminal politicians behind prison walls.

On January 16, 1996, the whole country erupted in a kind of delighted orgy of righteous indignation at the spectacle of hordes of very senior politicians -- ministers of the ruling party as much as stalwarts of the Opposition -- being indicted in open court -- and no ordinary court either but the Supreme Court itself -- for serious offences which, if proved, would not only spell finish to their unregretted political careers but so scare those whom Fate had not as yet ensnared in its net as to usher in a new era of clean politics.

True, the CBI had faintly pleaded an inadequacy of evidence on which to frame its charge-sheets but the Olympian judges of the highest court in the land put this down to political pressure and ordered the CBI director to file charges -- or face the wrath of our judicial gods. The CBI, of course, buckled to this pressure from the Bench and filed a series of charges.

There is little doubt, either, that the CBI also buckled to political pressure and filed charges not only against those whom it had identified as possibly guilty but also against those whom the political establishment had identified as eminently prosecutable in the pursuit of its own perceived political interests.

I have it on the authority of one who claims to have been given an illegitimate peek at the CBI's secret files that, of the 26 persons charged, the CBI's minions had recommended that there was a case against as many as 19 of them!

Twelve months on, not one single case has even come to trial let alone been decided. The politicians indicted, innocent, or guilty, are wandering around as ever. And Kamal Nath in Chhindwara, not to mention Buta Singh in Ropar, are showing the way to political rehabilitation for those who were politically punished for the political crime of not fitting into the then Congress establishment's ulterior political designs.

As for poor, pathetic Lal Kishinchand Advani, no one is more pleased at his continuing and apparently interminable discomfiture than his own enemies in the party ranging from Murli Manohar Joshi on the Hindutva far right to Atal Bihari Vajpayee on the barely-distinguishable-from-the-Congress far left.

Judicial activism has certainly given politicians an outstanding opportunity to settle their internecine scores -- but has it advanced the cause of justice? Advani, remember, simultaneously proclaimed that he would not fight another election till his name was cleared and sought an expeditious trial. The punishment he inflicted on himself stays inflicted -- the exculpation he has sought from the courts is unlikely to come his way till at least the next round of elections is behind us.

Judicial activism should be concentrating on how to make the judicial process more efficient. Instead, from the Supreme Court down to additional sessions judges, the concentration is entirely on showing up the executive in as poor a light as possible. Consider the difference between the way the wheels of justice grind in, say, England and here.

I take two cases which attracted considerable attention in our country: the first, Amitabh Bachchan suing a Swedish journalist in a British court for a Bofors-releated story. Once the hearings started -- and they started as soon as the two sides had filed all the relevant documentary evidence -- the hearings continued uninterrupted till they were completed. Immediately thereafter the verdict was pronounced and sentence awarded.