The idea of social justice has gone on the back burner with the Supreme Court not doing as much as it should, former judge Justice (Retd) Madan B Lokur said on Tuesday.
He also said there were many defects in Uttar Pradesh's new anti-conversion law, the Prohibition of Unlawful Conversion of Religion Ordinance, and it cannot be sustained.
"Unfortunately because of the (COVID-19) pandemic certain situation has arisen, and the Supreme Court should have been far more proactive than it ever was to look into the interests of a large number of people, migrants, for example, persons who have been thrown out of their jobs, variety of people from all walks of life," he said at the launch of the book, "In Pursuit of Justice- An autobiography", on former Chief Justice of the Delhi High Court late Justice Rajinder Sachar.
The book has been posthumously released by his family members.
"The Supreme Court could have definitely done much better than what it did this year. Over the last couple of years, the idea of social justice has gone on the back burner. It's unfortunate but we have to live with it," Justice (Retd) Lokur said during the launch through video conferencing.
While speaking on the topic "Personal Freedom and Judiciary", he further said that from a purely legal and Constitutional point of view, there were many defects in Uttar Pradesh's new anti-conversion law, Prohibition of Unlawful Conversion of Religion Ordinance.
"If one looks at the ordinance from a purely legal and Constitutional point of view, there are so many defects in it. The judge doesn't have to get into politics. Just have to look at the Constitution and see if it is valid or not. "The Constitution says Ordinance can be passed if there is a need for immediate action. What is the need for immediate action to pass it when the Vidhan Sabha not in session? Absolutely nothing... There is no way that this Ordinance can be sustained," Justice (Retd) Lokur said.
He further said that judges should be people-oriented and the Constitution is above everything.
He said the Chief Justice of India was an individual as well as an institution and being the master of roster, if he gave precedence to some cases and not to others, then there is an institutional problem.
"Master of roster is in charge and if he gives precedence to some cases and not to others, you have an institutional problem," Justice (Retd) Lokur said.
He also said that one cannot keep a person indefinitely in preventive custody without a trial.
While speaking at the occasion, former Attorney General Mukul Rohtagi, concurred with the views of Justice (Retd) Lokur the cases dealing with personal liberties have been pushed back.
He added the problem was, however, that the top court has taken too much and the role of traditional courts has long been lost.
"I think the Supreme Court has also taken on too much. The role of the traditional court has long been lost. If you take on too much, sometimes the priorities differ, and once the priorities differ these kinds of inconsistencies do come in. But yes the top court should shrug of this inaction in these kinds of cases and take them up vigorously," Rohatgi said.
He said that he did not agree with the contention that the balance of power has shifted from the judiciary to the executive.
"Our Constitution provides for separation of powers. In that, it has been my considered view that over the last 30-40 years the balance has sharply shifted in favour of the judiciary. And the judiciary has been entrenching on the field of other two chambers... The constitution is the holy grail that must govern our judiciary, government, etc," he added.
While talking about the anti-conversion law, the former Attorney General said that in Uttar Pradesh, forced conversions and marriage were taking place, now a law has been brought.
"It is the will of the legislators to bring in the law. The only thing that the Court will decide if it is valid according to the Constitution or not," he said.
He further said there were a host of issues that hindered access to justice for the common man.
"There are a host of issues. I agree that the master of roster has absolute unbridled power to decide which matter is urgent, which should be heard and which would be heard after the vacation. It has to be streamlined. The Supreme Court has become a super appellate court where everything of the high court has to go to there. You have a country of this size and litigations galore. The system is collapsing," Rohatgi said.
Senior advocate Kapil Sibal also said the top court has lost its way over several years and highly political issues are being taken while issues dealing with liberty were being brushed under the carpet.
"The Supreme Court has lost its way, not just 2 years ago, but several years ago. What happening is that the issues that are highly political are taken up, issues that deal with liberty are brushed under the carpet. There were people in Kashmir who were detained for over a year. The Supreme Court took no notice of it. Communications between people were cut off, but the top court would not deal with it," Kapil Sibal said.
The senior counsel further said the master of the roster was a real problem that the judiciary was facing and judges should be sterner staff.
"The master of the roster decides whether a matter will be heard or heard after vacation. That's a flaw that needs to be corrected... Ultimately it is your attitude towards the Constitution, people of India and values which you must uphold," Kapil Sibal noted.