By IANS,
New Delhi: The legal fraternity is united in hailing the Supreme Court judgment striking down the appointment of P.J. Thomas as the central vigilance commissioner (CVC), but experts are divided on whether to term it judicial activism.
While some jurists have complimented the Supreme Court for “reviving judicial activism” after a long gap, a section of legal experts disagreed with them and said that its verdict quashing the appointment of Thomas did not point to activism.
Senior counsel Prashant Bhushan, who opposed Thomas’ appointment in court, saw nothing unusual in the outcome of the case. He said it was just the continuation of what the court had been doing in the past – upholding the rule of law.
The judgment reflected a big change from the days of former chief justice K.G. Balakrishnan, said Bhushan.
“There is a big contrast between (former) chief justice K.G. Balakrishnan’s era and this (Chief Justice S.H. Kapadia’s) era and both will be different,” underlined Bhushan.
During former chief justice Balakrishnan’s time every public interest litigation was listed before him and he used to take the final call, he said.
The judiciary was active even during the days of former chief justice J.S. Verma – who headed the Supreme Court from March 25, 1997 to Feb 17, 1998 – but there was a pause in between and now it appears to have been revived again.
Former chief justice Verma presided over the hearing of famous cases involving politicians in the Jain hawala (money-laundering) case and the bank scam involving the illegal disbursement of loans.
Bhushan said there was no reason to describe as “unprecedented” the apex court’s verdict on quashing the appointment of Thomas. “These things were happening in the past also,” he added.
He said that there was nothing unusual in quashing Thomas’ appointment. “It is normal.”
Talking about the attention that the case has got in the media, he said:
“The only qualitative difference now is that the degree of awareness and concern about corruption, both in media and the civil society, has increased.”
“Even normal happenings in court are getting highlighted by the media and the civil society,” said Bhushan.
The senior counsel said that what was being projected as judicial activism was the normal discharge of responsibilities where the judiciary used its power to set aside important government decisions or important laws or directed the government to do certain things to enforce the citizens’ fundamental rights.
Judicial activism involved government decisions, policies, laws and directions to the executive (government). There was little difference between judicial activism and adjudication of other cases, he said.
Eminent jurist and senior counsel Rajiv Dhavan told IANS that the judgment in CVC’s case was absolutely correct.
All that the court applied was the simplest principles of public law which were relevant for the issue to decide but were not taken into account during Thomas’ appointment, he said.
But he insisted that the verdict could not be seen as a revival of judicial activism.
“Whereever the collegium system of selection (of higher judiciary) is adopted the (court) can’t work on the principle of brute majority…but on that of law (that is applied) correctly,” Dhavan said.
The senior counsel also appreciated the guidelines issued by the court for making the CVC’s selection process more transparent.
Senior Supreme Court lawyer Mohammed Ali Kazi said that it was brave on the part of Chief Justice Kapadia and his colleagues to quash the CVC’s appointment.
“This has exposed the illegalities that the government was indulging in and that were prevented from coming in public domain,” Kazi said.
“It is a giant step that the apex court has taken,” said the lawyer hailing from West Bengal.
“It is in national interest that such murky decisions of the government are set aside and a way is paved for more integrity and transparency in the government’s functioning,” he said.
Kazi hoped that the Supreme Court under Chief Justice Kapadia would continue the good job it has started with the quashing of Thomas’ appointment as the CVC.