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Challenges
to Democracy:
14th Lecture in the series on 21-12-2007
By Justice
K. Narayana Kurup
Chairman,
National Wage Board; Formerly Chief Justice, Madras High Court.
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"The
judiciary and the justice administration have much to do to
protect the democratic rights of the people and to maintain and
promote a culture of democracy in our public institutions and
civil society."
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Justice K.
Naraya Kurup
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Honourable Justice Narayana Kurup
started his lecture narrating the terrific traffic congestion and
delay on the road while traveling from Ernakulam to Thrissur causing
him arrive late for one hour for the lecture. “Transportation is the
lifeline for the people” he said. And this was the principle he held
while hearing a Writ Petition while he was a judge in Kerala High
Court on the question of private transportation in
Thiruvananthapuram city.
There is no democracy where
people’s fundamental right to move and travel is not honored by the
State. The Kerala Government had nationalized the routes in
Thiruvananthapuram city, pushing the private buses to outside the
State capital. Consequently the people of Thiruvananthapuram city
had no means of conveyance for every day business. The only means of
transportation was the State owned transport corporation (KSRTC)
buses that seldom ply on road, and was not adequate to the need.
Apparently, there were 20,000 autorikshaws (three wheelers) plying
on street where only 2000 rikshaws required. Thus huge amounts
(crossing several crores of rupees) were spent by the people only
for conveyance in the city, which could have solved simply by
permitting the private bus operators to ply their vehicles in city.
For reasons unknown, the Advocate
General on behalf of the Government put up strong objection against
permitting private buses in capital city. Hence the court (Justice
Koru) preferred a random survey among the people with the aid and
help of media and people that was held in record time (72 hours).
Thousands of people were interviewed about the functioning of KSRTC
buses. Over 92 % of people reported strong dissatisfaction and
wanted change in the existing rules and system that was detrimental
to the interest of the common people.
But later the Division Bench
stayed the order of the Single Bench which of course was in favour
of the people’s verdict in the opinion poll. However, the Government
had the prudence to honour the feelings and options of the people.
It changed the highly prejudicial orders it had pronounced
introducing nationalization of public routes in the city.
Democracy prevails and succeeds
where people’s feelings are appreciated and their grievances are
properly and adequately addressed by appropriate authorities. The
judiciary and the justice administration have much to do to protect
the democratic rights of the people and to maintain and promote a
culture of democracy in our public institutions and civil society.
The mind-set and the value system of the people in authority are
vital in this matter.
The courts have tremendous powers
to uphold the democratic fabric of our society. What is required is
that we should be willing to exercise our powers. The higher courts
have the powers not only to interpret a given law, but to create a
law (precedence) by digging out a new meaning and infusing new
spirit in letters of law. The ultimate aim of any law and rule is
the good of society – safety, security, welfare and prosperity of
all citizens.
When the Writ Petition for total
banning of smoking at public places came before the court for
hearing, the State held that view that the court had no jurisdiction
to entertain the case.
According to Lord Denning, the
courts shall not interfere into the area of the Executive. What has
been expected of them is “ironing of the creases”, not of changing
the texture. Of course, while we appreciate the division of powers
and roles, we do admit that in extreme situations there are
exceptions. The Executive exercises its powers to forfeit penal
provisions or to make relaxations in the matter of penalty imposed
on individuals by the judiciary. The Executive again, in extreme
cases, introduce strictures on people while the Assembly is not in
session, and get them endorsed by the Governor and issue as
ordinance for immediate implementation.
However, the Court relied on the
existing laws and rules in favour of the petitioner. Smoking
pollutes the atmosphere which is hazardous to health and banned in
law. Again smoking in public places would be nuisance to public and
it is harmful to people and injurious to their health. Further, it
goes against the right to life as it infringes one’s prospects of
life for reasons stated above. Smoking in public places, therefore,
was declared to be un-Constitutional.
The collectors of the fourteen
districts in the State of Kerala were made duty bound to implement
the orders and they were asked to follow it up. Each of the
collectors was asked to issue orders banning smoking at public
places and to monitor strict compliance of the orders.
When the case against mosquitoes
in Kochi city came for consideration, the situation was not
different. It was wrongly interpreted or misquoted at several places
by several persons. “Judicious outrage against mosquitoes” was the
caption in one of the news papers. Again opinion was taken from many
well meaning people on the issue. There were many distinguished
people who strongly opposed the court’s intervention in the matter
of mosquitoes that was deemed to be the constituency of the
corporation. All the same, equal or number of people gladly welcomed
the idea since mosquitoes in Kochi had become a real menace to the
life of the entire population, more especially life of people who
lived in the margins and in insecure situations.
It does not matter whether it is
the court, corporation, government or NGO; what matters is that it
should be committed for the well being of the people. In the absence
of commitment to the people, democracy becomes a mockery.
If the question of traffic
congestion in Kochi, I ask myself, comes to me for disposal, my next
action will be an urgent notice to the Confederation of Indian
Industries (the car makers), the Department for Road Transports and
the State. How is clearance given to the car making companies to
produce such huge number of cars every year without adequate
infrastructure?
Law is developing, so does
jurisprudence.
In the matter of environmental
protection and ecological balancing, the principle applied is
intergenerational equity of natural resources. Our future
generation shall not inherit parched lands only.
In democracy, Government or
people’s representatives will have to comment or criticize orders by
courts if they are opposed to public good or people’s general
feelings. It is part of their accountability and commitment to the
people of the land. Such interference shall not be viewed as
‘contempt of court’. |
