The Lokpal was meant to tackle corruption in high places. So many years have passed since the law was passed, but a Lokpal has not been established.

Written by Seema Chishti |

A P Shah, Cheif Justice A P Shah, Delhi HC Chief Justice, Uniform Civil Code (UCC), NCLT (National Company Law Tribunal), A P Shah on National Tax Tribunal, indian express news

Justice A P Shah at his Delhi residence.Justice A P Shah, former Chairman of Law Commission and former Chief Justice of Delhi High Court, speaks to Seema Chishti on issues ranging from the importance of institutions to the role of the judiciary to Uniform Civil Code.

On Finance Bill, winding up and merger of some tribunals

This exercise is important, but should have been done very differently from how the government has presently undertaken it. A similar exercise was undertaken in a systematic and long-drawn out process in the UK by the Legatt committee. In India, no such long-term deliberations appear to have taken place. There appears to be no in-depth study of the state of the tribunals that are being affected by this change.

By this amendment, the central government has assumed certain critical powers, such as the power to draft rules pertaining to the appointment, qualifications, terms of office and removal of tribunal chairperson and members. Ordinarily, these powers ought to go to Parliament. This appears to be a usurping of powers by the government, which is deeply problematic, and may face constitutional challenges in the light of earlier judgements as in the cases of the NCLT (National Company Law Tribunal) and the National Tax Tribunal. The proposal to fire tribunal members by giving three months’ pay and allowances creates fundamental structural problems — no one is likely to accept such positions on such terms. On the importance of certain institutions

We definitely need an independent judiciary, institutes of higher learning, anti-corruption bodies, a central bank, an election commission, and so on. The independence of certain types of institutions are particularly important these days. For example, an independent Election Commission can help decriminalise and stem the rot in politics. Anti-corruption bodies like the CBI also need to be independent, and move away from the allegations of misuse by the government that they constantly face. The Lokpal was meant to tackle corruption in high places. So many years have passed since the law was passed, but a Lokpal has not been established. The flipside of independence is accountability, but the balance between them should be struck with caution and care. In this regard, a strong civil society is also a pillar of good governance, and independent NGOs are just as important a part of a well-functioning democracy. Yet, NGOs are under tremendous pressure here.

On the judiciary as a balancer of power 

There was initially a very limited role envisaged for the court. Indeed, the Indian Supreme Court was never designed or intended to play the role of Supreme Court of the US. After the confrontation between the Supreme Court and the Executive — starting from Golaknath to Kesavananda Bharati — there was an abject surrender to the Executive in the ADM Jabalpur case. That marked a turning point, after which the court began moving towards the people, either consciously or unconsciously. This can be seen in the court’s expansion of Article 21 with Maneka Gandhi and other cases. The court now functions almost as a social auditor of sorts. It has invented new jurisdictions, new procedures, and new remedies such as PILs. As Professor (Upendra) Baxi said, the court has become a co-governor of the nation. Over the past few years, the court has continued to be active, but I expect that this role of co-governing might diminish in the future. This is because of a very strong government at present. There will be lesser and lesser co-governance of the nature we have seen in the past, although not to the extent of complete surrender. History will not repeat itself. I am confident that it will not happen.

At the same time, it is troubling to see how the court is changing in many small ways. For instance, PIL jurisdictions have been used and abused. Orders like the ones in the national anthem case, or Jolly LLB 2… amount to judicial censorship, which is not desirable. Secondly, an order like the one in the national anthem case creates an offence where there is none… orders like in the Jolly LLB 2 case effectively tell the public that nobody can or should comment about the judiciary. Reasonable restriction on free speech can be laid down only by law, but not by law as understood under Article 141.

There is also a growing trend of rank populist judgements, like in the BCCI case. There is also a creeping elitism in the court. The very origin of the PIL jurisdiction as we know it today started with the idea of ensuring socio-economic justice. But there have been several instances where several thousands of slum dwellers were removed at the behest of a court order in PILs, by labelling these slum dwellers thieves and pickpockets. Moreover, populism is becoming so common in the judiciary nowadays, that in its intention of moving towards people, the court has switched tracks to populism. The original approach of ensuring social economic justice, protecting human rights, and so on, has taken a back seat.

On Law Commission and Uniform Civil Code 

What is the objective of the Uniform Civil Code (UCC)? It is wrong to assume that enacting uniform laws will, in some way, integrate the nation. It is important to remember that no particular personal law is either flawed or perfect, and no law is free from any discriminatory provisions. In the same vein, no one religion or personal law should be taken as a complete basis for enacting a UCC. The minorities suspect that the UCC will be a Hindu code, and nothing short of that. We need to look towards broader objectives. We need to do away with discriminatory personal laws against women, we need to empower women, restore their dignity and self esteem. When it comes to creating a UCC, there are many laws — caste, religious codes, customary laws — all of these need to be replaced. This is a matter of tremendous debate in society, and there has to be a deep discussion.

We must, in the meantime, look to borrow freely from each others’ laws, making gradual changes in each of the legislations. In other parts of the world, for example, London or New York, people are free to get married as per their religious laws. But then, you may have certain common laws for inheritance, divorce, etc., while allowing people to continue with their personal laws for all other purposes.

Everyone acknowledges that drafting a UCC is a huge exercise. Ideally, the Law Commission should have conducted informal consultations with different bodies and should have had internal debate before such a questionnaire was issued. The Chairperson himself says that he was not aware what this code could be. The questionnaire thus was a bit premature, and should have come after discussions.