TO CALL OR NOT TO CALL?
This was a question the Hon’ble Supreme has posed to the High Courts of the country. As far as the senior functionaries of the government are concerned, appearing when summoned by the courts is their official mandate. Making oneself available to any judicial directive gets ingrained in the public functionary. At the back end the effort that goes on in preparing para-wise remarks and affidavits, so to say, are humongous and the public functionary tries to be as true to the word and spirit of the directive and the law as he can be. As a part of the executive, officers will keep passing orders for the smooth functioning of the government while discharging their public duties and at least a few of them would be challenged in Courts by people negatively impacted.
They have all the rights to go to a court of law for redressal of injustice they feel has been meted out by the govt / officer. But it is never a great feeling to be summoned by a court of law and may be its thought that you are being called to be chided. The arguments in the court and the observations made, during its course have strengthened these feelings. It has been a matter of higher duty, compulsion and routine to appear before a court of law when asked for. That there can be a second opinion regarding it, would have never occurred to the officers. But so it is. One of the headlines today read; ’Judges must not behave like emperors’ Supreme Court strongly condemns High Courts’ practice of summoning of public officers unnecessarily.
That the official would be unnecessarily called was not on his imagination horizon and so whenever he was called he took it as a judicial necessity and presented himself. This is the smokescreen through which the public servant views the democratic world and he might as well. The wisdom of the Supreme Court in one judicial pronouncement has the power to change the day-to-day nitty gritty of judicial administration considerably. Indirectly it has a huge bearing on how the officers view themselves while running the administration of this country. ”A practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure. The line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers and in a way pressurizing them to pass an order as per the whims and fancies of the Court.”
Scathing remarks indeed. Sobering too. Do the democratic institutions have an inherent tendency to get into the power play game? We have also seen the Judiciary – Legislature tussle in the past, it can happen in future as well. Do we need to invest time and energy in democratic grooming of high functionaries? Can it help create a better synergy between the three critical wings of democratic governance? The Supreme Court added ”It is always open to the High Court to set aside the decision which does not meet the test of judicial review but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in strongest words.” The harsh reality is that the executive itself is miles away from objective governance. Time to change.
DEMOCRATIC PROPRIETY IS A MATTER OF HEART AND MIND. HOW MUCH CAN BE HARDCODED IN LAW?