S Mohammed Irshad writes from Kerala describing the erosion of credibility of the state judiciary owing to a series of questionable and what seem like unjust verdicts.

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The tug of war between judiciary and executive is absolutely appearing in out of context. The manner in which the debate or controversy arises not gets into the core issue of the causes and the likely social impact. In Kerala, the local self government minister made a comment on the nexus between the money power and judgment; as a consequence thereof now he is facing legal trial which would likely show his way out from the ministry. The response of Kerala High court towards this seems to be armature in nature. It completely set aside the political significance of parliamentary democracy. For those who are consciously watching the manner in which some of the recent court verdict came into being in Kerala never feels any thing unusual in the minister’s statement rather it came out as a common man’s genuine response to judicial injustice. Why common man’s perceptions turn against the consecrated values of judiciary? The judicial establishments should seek the explanation for this first.

In Kerala the recent High court verdicts on some sensational cases have played a crucial role in undermine the public faith on judiciary. Let us start with the notorious sex racket case – Sooryanelli in 1994, this was shook the public consciousness of Kerala to a great extend.  A minor girl was trapped by sex racket and she got rapped by 44 men. Later all accused in the cases were acquitted by the Kerala High Court, by considering the mercy of circumstantial evidence that the girl was never made any attempt to escape from the racket, which according to court a partial consent. Later a doctor came up with the evidence that during the absconding day’s girl brought to him with sever infections even in her private part. Yet none of it came to help the girl; and all the accused were acquitted and engaged in normal life and one of them got married!. Another case called Plachimada is completely dissimilar in terms of values, but socially and environmentally highly important – Plachimada case is well known in global and national scenario. The acute water squeesing by the company was not raised any legal issues in our judicial system. The right of the company – the legal right to have access towards raw material was well protected by the legal system. The real cause of the conflicts i.e. the denial of water access to local people and the distribution of toxic material as fertiliser by the cola company never raised any question of law. The economic rationale of keeping the FDI was seemed to be the priority of court.

Another court verdict also raises the eye brows of general public. The issues of ADB loan raises sever political controversies in Kerala. Even though the state is being ruled by left alliance and one of the youth organisation coalition partner CPI wages protest against the anti-social conditionalities of the loan exposed the fact that the cabinet of Kerala government has no role in getting the loan.  It seemed that a democratically elected cabinet power has been hijacked by an international lending agency. The legal question in ADB loan is rather important in two factors; first, it exposed that only a resident commissioner of government of Kerala at Delhi can sign the agreement, second, the judiciary has nothing to do with the precarious conditionalities attached to an international lending policy.  Infact, the organisation which filed the case against the ADB in High Court was seeking the government explanation for why none of the ministers was present while signing the loan agreement which can influence the entire urban water management of Kerala towards privatisation.  Later the case shifted to Supreme Court and came out with a verdict infavour of state government by justifying the economic rational of the loan – ‘capital scarcity’.

These three verdicts the social point of view was completely rejected or undermined. Besides, it raises the issue of manner in which court interpret the social anxieties. In sex racket case it is fact that the verdict is completely gender biased or sexual biased. The court verdict has not reflected any difference with the male chauvinistic statement on female sexuality. It went on categorically stated that the victim was incapable in protecting her ‘women hood’. The wider social impact of the verdict is that all the accused in the similar cases registered in Kerala started referring the case history of Sooryanelli and it became a legal defensive mechanism even if the victim is minor girl. Of course, this is not the issue of bribing the judiciary but rather the representation of female sexuality in jurisprudence. It’s still not clear why nobody was punished even victim personally identified the accused and investigative agencies produced them before the court? Moreover the interpretation of law in conformity with male sexuality came within the ambit of law whereas the female sexuality victimized – in principle the society punished the girl for not protect herself.  Of course the judiciary is incapable since the girl’s is ‘irresponsible’.

In Plachimada case and ADB loan issue, it has been recognized that judiciary is not above the forces of capitalism. There is an interesting thing happened in Kerala; one of the high court judges attended a party hosted by the consortium of self financing college, who hear the case against fee structure of such colleges in his bench. No legal notice issued to him by any judicial establishments. Here how the judiciaries react if it’s being interpreted as a capitalist bias of the judge?  As said in the beginning as far as the general public is concerned the minister who faced contempt of court in Kerala is innocent since his statement does not carry any ant-people perception. If he convicted, it would not at any means uphold the sanctity of our judicial system. On the contrary it will open a healthy debate on the role of judiciary in the era of globalisation and privatisation. Since, the state follows the neo-liberal development policy, the parliament itself would force to issue legislative support for both the foreign and national capital e.g. when our parliament enacted a law banning the traditional stonesalt, eventually it helped the Indian multinationals which produced iodized salt, it reaches into an oligopolistic competition. No court got into the fact that the household consumption of toiling masses raise above other amenities. Also still the parliament does not table any amble medical reason why it enacted such a law, and of course our parliament members are not aware of it owing to class structure of our legislature. Moreover the disinvestment of public sector units via viz denying basic amenities to masses never ever leads to the so called judicial activism. There is nothing wrong to state that contempt of court occurs when it question the neo-liberal state policy and it turn against the forces benefiting neo-liberalism.

Unfortunately one can rally a number of examples which forces the general public to suspect the judiciary. Often it happened on the sensitive silence of judiciary when state sponsored human right violations and pogroms. In such cases judiciary seems to be with the ‘state’ to uphold the national solidarity in the era of terrorism. We generally perceive that judiciary is a watch dog, but now we forced to realise that it’s only a barking dog in front of human rights violation, denial of basic amenities and hijacking of parliamentary democracy. The cases referred in this article points out the fact that judiciary is incapable on certain ground- that incapability often breeds neo-liberalism and de-limit the public resistances. Thus judiciary is loosing its social significance to act against public contempt of its verdicts unless it comes to their rescue.

-The author is a research scholar at Department of Economics at University of Kerala, Thiruvananthapuram, Kerala. E-Mail: smirshad77@yahoo.co.in or mohammedirshad31@gmail.com