The judiciary is encroaching on the government space and taking up matters of public policy which is the realm of the government, Mahesh Jethmalani, senior advocate and Rajya Sabha member, has said.  

“Increasingly the judiciary is encroaching on the space for the government. There are times when they [courts] take up matters of public policy and policy issues which are best left to the government...it is spilling over to other areas when there is no need for alarm,” said Jethmalani.

He was in a conversation with Kailashnath Adhikari, MD, Governance Now, during the webcast of the Visionary Talk series, held by the public policy and governance analysis platform.

Jethmalani said that amid Covid-19, when there have been issues of public health, the poor, migrant workers, infrastructure, hospitals, beds, oxygen cylinders, etc, courts are taking a stand to ensure that the government is doing its best. “….by and large the court has maintained boundaries… due to the momentum of Covid we are seeing a slight stepping of the judiciary into areas normally reserved for the executive….once Covid goes into retreat  and things go back to normal, there will be a judicial retreat from interference in policy matters.”

Watch the video:



On upcoming elections in Uttar Pradesh, he said chief minister Yogi Adityanath has given good and strong governance and a lot of development work is going on in the state. Modi’s welfare politics along with Yogis’ support in the implementation of projects has created a huge mass space, he said. In every election, if the BJP loses in terms of seats, it increases its vote share.

Asked if caste-based voting will lead to a split in votes in UP, Jethmalani said the reality of Indian politics is that, in fact, caste does play a factor. “There is no doubt that there will be a supplemental caste-based voting amongst the voters ... people talk about a communal card being played… it is not that BJP stokes communal sentiments and wins elections. Ever since the election buzz has been sounded we have seen Samajwadi Party playing the Jinnah plank, Salman Khurshid and others denigrating Hindutva as if they had greater knowledge than what it means to Hindus themselves… Salman Khurshid’s line was endorsed by Rahul Gandhi... and Rahul only becomes a Hindu temporarily during phases of elections,” he said.

He added that the communal card being played by opposition parties will face a severe backlash. “It may pass muster with elitist circles in certain elitist areas who cling to the old slogan of secularism….in Hindu heartland, you cannot denigrate Hindutva… the Hindutva card will emerge because of the opposition’s denigration of Hindutva,” he said.

On minority oppression, he said a few incidents of lynching are unfortunate and need to be condemned loudly but they do not constitute the norm of the country.

He said while there has been much criticism on the government’s bad handling of Covid, which is not true, nobody predicted the ferocity of the second wave. “Yes, in a sense we were not ready for it… there are always mistakes in a new calamitous event or instance... given our population and areas, not just the centre but most state governments have done extremely well in handling the Covid crisis.” He added that with a V-shape recovery happening now, the Indian economy is on an uptick.
 
Asked if a united opposition sans Congress has the potential to emerge, he said even if such a scenario happens, it would not ensure that such a united opposition will translate into vote share or increase of seats “This is a more an artificial conglomeration of parties,” he said, adding Amarinder Singh is the tallest Congress leader on the horizon today.

“What they have done... the humiliation… will rankle with particularly the Sikh voter in Punjab… the Punjab BJP along with the very charismatic and acceptable face of Amarinder Singh is certainly going to gain from the split in the opposition vote… and the internal problems in the Congress itself…”

Asked if e-courts were able to dispense justice or physical appearance was more effective, Jethmalani said that during the pandemic Indian courts have done extremely well as compared to the rest of the world and hybrid courts will be/should be the way of the future. He said for short hearings on Mondays and Fridays, the days for admissions of court cases, virtual system is working well and this may well be the future too. But for longer hearings and trials, physical hearings will have to take place.
 
On the question of media conducting its own trials, the senior counsel said we are living in times of sensationalism and sound bytes. Channels have become very competitive and everybody is looking for a salacious story. This undermines justice. The media has to be careful because it also has a responsibility towards its impact on justice for an individual. There should not be such prejudice in the media for or against a person that in public minds it causes a bias against the person or sympathy which is unwarranted. “Justice is best-delivered in the cool and sober confines of a court of justice with a sober judge who is not moved by the passion that the media often expresses,” he said.