She had been shifted from Punjab and Haryana High Court to Uttarakhand in the wake of infamous cash-in-bag case. The charge against Yadav is that she fast-tracked a property dispute case she was hearing. And then ruled in favour of the party represented by Sanjiv Bansal, then Additional Advocate general, Haryana who paid her Rs.15 lakh through her “close friend” Delhi-based businessman Ravinder Singh. The agency has also alleged a nexus between lawyers, their associates and the Judge.

Yadav has said that the “CBI has gone mad” and “acted under pressure of somebody”.

Yadav’s is not the only case where a High Court Judge faces corruption charges. There has been an increasing number of senior and subordinate Judges who have been finding themselves in the dock for their involvement in scams. The trend does not augur well for the society as it is the judiciary besides the Press in whom the people still have some faith though judicial activism in cases concerning functioning of Government and Legislatures has lately generated controversy.

People no longer have faith in promises politicians never tire of making to provide clean governance. They and their favoured bureaucrats are viewed as main sources of breeding corruption. The fact that politicians involved in corruption cases manage to escape imprisonment has made the people cynic about the credibility of even microscopic number of honest politicians. In India, there may not be even one percent politicians facing corruption or criminal cases who find themselves behind the bars. They, particularly those in power, manage to get clean chit from courts by ensuring that prosecution witnesses turn hostile. Among such cases was that of the members of Punjab’s ruling Badal family who were given a clean chit in the corruption and disproportionate assets case filed by the Vigilance Bureau during the 2002-2007 rule of Capt. Amarinder Singh-led Congress government. Almost all government officials named as prosecution witnesses turned hostile. Even the Vigilance Bureau looked like abandoning the role of the prosecutor.

Now the prosecution witnesses in the corruption case against Punjab Assembly Speaker Nirmal Singh Kahlon are also turning hostile. The case against Kahlon pertained to the period he was Cooperation Minister during the 1997-2002 Badal-led Akali-BJP government.

Perhaps the worst example of prosecution witnesses backtracking is that of Kamaljit Singh, husband of Harpreet Kaur, daughter of the former SGPC chief Bibi Jagir Kaur. On Kanwaljit Singh’s complaint about the involvement of Jagir Kaur in her pregnant daughter’s murder in April 2000, the High Court had ordered a CBI inquiry. The CBI filed a chargesheet against Jagir Kaur in 2001. But later Kamaljit denied having made any statement charging Jagir Kaur with murdering Harpreet. The CBI counsel claimed in the court that Kamaljit had taken Rs.three crore from Jagir Kaur for turning hostile.

Now about the controversy on judicial activism.

The Supreme Court’s ruling quashing the appointment of P.J. Thomas as Central Vigilance Commissioner has ignited an intensive debate on the role of High Courts and Supreme Court in matters relating to the functioning of the Executive and Legislatures. There is a growing public opinion in favour of higher courts activism as the people see a ray of hope in judicial activism in an environment of all round deterioration in governance. It is argued that it is the judiciary’s intervention which has been forcing the government to take corrective steps to stem the rot.

On the other hand there is an equally strong view against judiciary crossing the Lakshman Rekha by stepping into roles that have not been drawn up for them. The biggest advocate of this view is former Lok Sabha Speaker Somnath Chatterjee who was expelled from the CPI(M) for refusing to resign as Speaker arguing that the sanctity of a Constitutional office was above the diktats of a political party. He has made telling observations against the judiciary crossing the lines.

“There is confusion everywhere today as the judiciary is busy with executive functions, the legislature with investigations and the executive with everything other than governance. How can the judiciary decide on the criteria for appointing a CV C? Will Judges now go on to make prescriptions for appointing the Chief of Staff, the Home Secretary or the Defence Secretary? It will finally come down to how Judges themselves are appointed” Chatterjee has said.

Chatterjee’s articulated stand puts the issue of judicial activism in proper perspective. There cannot be any objection to the judiciary playing the role of an activist. But judicial activism should be based on rational approach.

The judiciary’s role should be interpretation of laws on the basis of their Constitutional validity, decide the legality or illegality of the cases referred to it and even pass strictures against the government, institutions or individuals who in its view violate the law. If it starts ordering the government to administer in the way the judiciary wants, it would amount to crossing the Lakshman Rekha which if the Executive and Legislatures also start doing will lead to chaotic governance, a situation which carries the seeds of Emergency-like authoritarian rule. (IPA Service)