If the present trend continues, the day is not far off when India will cease to be a democracy and be literally under judicial dictates.
The Indian Supreme Court has virtually killed the concept of separation of powers and made the executive and the legislature accountable to the Supreme Court, not the people of India. And ironically, all this the Supreme Court is doing in the name of the people of India!
The Supreme Court seems to have insulted many proud Indians when it implied that India is not exactly a true democracy, though the whole world accepts that the country is the largest democracy in the world, where governments change peacefully through elections. It described Election Commissioners, whose task is to ensure that citizens exercise their right to franchise without any fear and favor to repose faith in the incumbent governments or vote them out, are “pliable.”
Hon’ble judges of a Supreme Court bench have decided accordingly that henceforward election commissioners would be selected by a committee consisting of the Prime Minister, the Chief Justice of the country, and the Leader of the largest opposition party in the Lok Sabha (House of Representatives of Parliament).
Predictably, the opposition Congress party has now demanded that all the Commissioners in the Election Commission must resign immediately. What is implied is that all the elections held under these commissioners, including the latest round in three northeastern states, have not been free and fair.
Or for that matter, the election in Prime Minister Narendra Modi’s home state, Gujarat, was held recently. That under the same Election Commission, the Congress won in Himachal Pradesh or, for that matter, the Aam Admi Party in Punjab is something that the Honourable judges in the Supreme Court should better explain.
One does not know how these Hon’ble judges view that over the last 72 years, governments, both at the Centre and in the states(provinces), have been changed, and that too peacefully under these very Election Commissioners, appointed by the central government of the day.
For them to suspect that things are wrong just because some habitual opponents of the Modi government say so and demand through the all-pervasive Public Interest Litigations, better known as PIL ( again a concept thrown by the judiciary), that every decision of the Modi government must be declared illegal, is something that is becoming now a routine occurrence.
However, these Hon’ble judges are not realizing that whatever they may do, they cannot satiate the demands of Modi’s critics (that some of them may be sharing the same hatred towards Modi is a different matter). For instance, the Director of the Central Bureau of Investigation(CBI) is appointed by the same committee of the Prime Minister, Chief Justice, and the Leader of the largest party in the Lok Sabha. But the Director continues to be branded “pliable” if we go by the allegations of the opposition parties.
For the Modi critics, there is not a single intuition in the country that is not pliable under the present regime. In fact, they say that even many judges of the Supreme Court are not independent when their verdicts do not go the way the likes of Rahul Gandhi, Arvind Kejriwal, and Mamata Banerjee (leading opposition leaders) think. Remember the so-called Rafale scam (purchase of 39 fighter planes from France) or, for that matter, the Pegasus spyware issue when the Supreme Court did not buy exactly the allegations.
Or, for that matter, it gave a unanimous verdict to construct a temple of Lord Ram at a disputed site in Ayodhya.
In fact, so brazen is Rahul Gandhi that he said at Cambridge University yesterday that his phone was hacked by the Pegasus spyware from Israel. This despite the fact that a Supreme Court-appointed committee, set up last August to look into the allegations of the government allegedly using Pegasus for snooping, had concluded that the spyware was not found in the 29 mobile phones examined by it, but the malware was found in five mobile phones.
Reading the report of the committee, the Supreme Court then said, “We are concerned about the technical committee report… 29 phones were given, and in five phones, some malware was found, but the technical committee says it cannot be said to be Pegasus.” But what was most ludicrous was that Rahul Gandhi refused to give his mobile phone, despite repeated requests by this committee, for examination. And yet, Rahul continues his tirade, this time on foreign soil.
Be that as it may, under the route of PIL, the Supreme Court is increasingly getting politicized. See the number of cases every day the active politicians such as lawyers like Kapil Sibal, Abhishek Manu Sanghvi, P C Chidambaram, Prashant Bhushan, and Dushyant Dave ( all of them have pathological hatred towards Modi ) force the Supreme Court to take of cases on an urgent basis and our Chief Justice accedes to their virtual dictates.
All these cases, whether Rafale or Pegasus or demonetization or Covid-management or farmers-agitation (in this case, the Supreme Court virtually fuelled the agitation by sitting over the report of the Commission it had set up to examine arguably the most progressive legislation to develop the Indian agriculture and empower the genuine farmers), have been essentially based on politics, not the legal anomalies. But the Supreme Court fell into the trap of these politicians or anti-Modi forces through their aggressive lawyers, many of them top political leaders themselves.
Because of this increasing politicization of the Supreme Court, it is possible that the Hon’ble judges are not realizing how they are killing the basic tenet of “separation of powers” that is the foundation of any real democracy. The executive, legislature, and judiciary must have checks and balances against each other. But that is not happening now. Judges in India are appointing themselves. They are increasingly playing the role of the executive. And now they are making laws or dictating the legislature how to make and what laws.
Why must the government provide sanitary pads to young girls in schools? What should be the prices of the items that many of us buy from our departmental stores? Why is the government appointing some persons with the undue speed in important positions?
Why is the government not the right authority to decide whether medicines or vaccination should be free or not? On what basis did the government take the decision to demonetize higher currency notes a few years back, and why cannot it repeat such acts? Should the government build new buildings for its offices? How will cricket be played in India, and under what conditions?
The above list is just a sample of questions that the Indian Supreme Court has dealt with in recent years. And almost all these are matters that are, strictly speaking, under the domain of the executive, that is, the government led by Modi.
In fact, some Hon’ble le judges have been on record that they do not care about the separation of powers and that they have every power to remain the supreme authority in the country, with every other organ of the country obeying them. They cite in this regard the Article-144 of the constitution, which says that “all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.”
It is against this background that one may see the unique feature of the judges appointing themselves in India, absent in other democracies.
It may be noted that the most important judicial reform that the Modi government attempted to undertake was in 2014 through the 99th Amendment to the constitution for establishing a National Judicial Appointment Commission, consisting of representatives from the judiciary, legislature, and executive, to replace the collegiums system of appointments, in which judges appoint other judges. But it was aborted by the Supreme Court even though the government was able to garner support for the law in both houses of parliament. The Supreme Court struck it down, citing a breach of judicial independence in October 2015.
Unlike in the United States, where appointments are a combination of ‘Presidential selection and Senatorial approval,’ unlike in Canada, where the appointment made by the federal cabinet precedes screening by a judicial advisory committee, unlike in Australia, where the Governor-General-in-Council makes the appointment and the cabinet headed by the Prime Minister on the advice of the Attorney General makes selections, and unlike in the UK where the Judicial Appointment Commission (consisting of legal experts and professionals) makes the recommendation that is submitted to the Queen who makes the appointment, in India, it all began with the system of the President (Union Cabinet) appointing judges “in consultation” (which was non-binding) with the Chief Justice.
It was only in 1993, in the ‘Supreme Court Advocates-on Record Association vs Union of India’ case– popularly known as the Second Judges Case- that the court declared the Chief Justice the Appointing Authority and the President a ‘Consultee.’ It established the Collegiate System (CS) of the CJI and four seniormost judges of the SC recommending candidates to the president for appointment to the higher judiciary.
The government, at best, can return the names to the CS for reconsideration, but if the latter recommends the same names, then the government (President) has to appoint them. And it was done in the name of ‘judicial independence’ being a part of the “basic structure” (of the constitution) doctrine. Incidentally, it is the Hon’ble judges who alone can determine what is the basic doctrine and its scope, which, over the years, has expanded vastly.
The Supreme Court said that the presence of a law minister in the proposed Judicial Commission and the appointment of two eminent persons in the commission by a group, which would have, besides the Chief Justice of India, composed of the Prime Minister and the Leader of the Opposition, would constitute political involvement in the judicial appointments. It was not convinced of the arguments that the Prime Minister, Law Minister, and leader of the opposition were constitutional posts, not political persons, and all of them were covered under the same basic structure of the constitution that ensures “parliamentary sovereignty’ and an “elected and accountable government”(that included the Prime Minister and Law Minister).
Thus in India, we have a judiciary where the judges appoint fellow judges at higher echelons. This is a unique feature of Indian democracy. As has been already noted, in no other democracies do judges appoint their colleagues and successors. Judiciary in India is not at all accountable to either the executive or the legislature.
The only weapon that the legislature has is the power of impeachment of the judges. But it is a power that is on paper; its exact implementation depends on overwhelming cross-party support in both houses of the parliament, a highly unlikely scenario under normal times.
In fact, such is the independence of the Supreme Court in India that once former Chief Justice (Justice AltamasKabir) has rightly described the Indian judiciary to be “the most powerful in the world.” And this power has not come alone from its structure and composition. It has been also due to its ever-increasing powers and jurisdictions, as decided by itself and much against the anguish of the government of the day.
According to the founding fathers of the Indian constitution, which came into force in 1950, the Supreme Court had three main functions– “original jurisdiction” over disputes between center and states, “appellate jurisdiction” (the highest court of appeals), and “advisory jurisdiction” when the President seeks specific advice on apparent ambiguities regarding the interpretation of a clause of the constitution.
However, the Supreme Court of India grew considerably in power and stature since the mid-1980s when justifying why the “Supreme Court of India should become the Supreme Court of Indians,” it tried to expand ‘access’ to justice through what is known as PIL.
It all started with the landmark S P Gupta vs. President of India and others judgment, in which Justice P.N. Bhagwati, the key architect of PIL, relaxed the locus standi, and opened up the doors of the judiciary to public-spirited citizens– both those wishing to espouse the cause of the poor and oppressed and those wishing to enforce performance of public duties.
He made it clear that “any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury could move the court. The court does not insist on strict procedures when such a person moves a petition on behalf of another or a class of persons who have suffered legal wrong, and they themselves cannot approach the court by reason of poverty, helplessness or social backwardness.”
In other words, the court changed the old concept of locus standi by allowing people who had a stake, direct or indirect, in the outcome of a suit to be represented in the judicial proceedings.
PIL heralded the era of what is called “judicial activism” in India. Through PIL, the court creatively expanded Fundamental Rights, especially Article-21, to cover the right to live with human dignity, the right to livelihood, the right to education, the right to health and medical care of workers, and the right to a healthy environment.
In the process, the court has entered itself into the shoes of the executive branch. It now grants compensation to the victims, passes orders to rehabilitate bonded laborers, issues directions to rickshaws pullers to prevent them from unemployment, frames guidelines to check environmental pollution, and so on.
In a significant judgment in Vineet Narain vs. Union of India, the court used ‘continuing mandamus’ to give the government a series of policy directions, including conferment of statutory status to the Central Vigilance Commission, manner of their selection, tenure, and other nitty-gritty of the executive job.
In a similar manner of asserting its power of “judicial review,” the court in recent years has further sharpened its weapon of “continuing mandamus” for use; it has passed orders and formulated guidelines on issues of social welfare, environment protection, electoral reforms, etc.
In fact, if this trend continues unchecked, the rest of the world has to deal with the Chief Justice, not the Prime Minister, while dealing with India.
- Author and veteran journalist Prakash Nanda has been commenting on politics, foreign policy, on strategic affairs for nearly three decades. A former National Fellow of the Indian Council for Historical Research and recipient of the Seoul Peace Prize Scholarship, he is also a Distinguished Fellow at the Institute of Peace and Conflict Studies.
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