OVERACTIVE INDIAN JUDICIARY.

 

BY K P PASWAN.

 Fierce verbal battle is going on in India between Judiciary and the executive ,subject matter being the appointment of Judges.

At present Indian Judiciary is under scanner for various reasons. Judges of Apex court are being appointed by a Collegium of judges which is not found in other  democratic countries in the world The system, interestingly was introduced by the Supreme court itself in 1993 when a weak central coalition government was functioning . PM of the contemporary India was responsible for social tension and political instability.  Supreme court introduced Collegium System headed by Chief Justice and assisted by three senior most judges to appoint judges of High Court and Supreme court. Collegium also deals with promotion and transfer of high court judges.

BACKGROUND. Before 1993, Indians witnessed some of the brilliant judges occupying the post of judges of supreme court. There was complete independence of Judiciary. In Goloknath case the Apex Court gave the ruling that parliament could not amend the constitutions but it was the famous Keshwanand bharti case that Supreme Court introduced the concept of Basic Structures and debarred parliament from amending the basic structures of the constitution but the Apex court failed to elaborate the nature of basic structures, Religion tolerance and freedom of speech are inbuilt in Indian constitution and there is no dispute but it is left upon the apex court to explain and pronounce other types of basic structures whenever situation arises, for example appointment of judges and independence of judiciary are regarded as basic structures, this is surprising as independence of judiciary cannot be questioned in an open democracy. Late PM Indira Gandhi superseded several senior judges just to appoint a particular person as the Chief Justice of India. She also introduced terms like Secular and Socialist in the preamble. Secularism and Socialism have lost relevance in modern age as the entire world is under the cloud of religion bigotry and radicalism is spreading like virus.The term Socialism has become a metaphor in the hands of politicians who cannot differentiate between evening and morning. In the same way social welfare without discrimination is the cornerstone modern democracy. Preamble of Indian constitution reflects true nature of basic structures and the preamble has been amended by a PM  (Indira Gandhi)who is regarded as one of the most ambitious but strong political figure of India.

 Indira Gandhi wanted a committed judiciary and a committed Bureaucracy, she succeeded in achieving her objects. Same thing is happening in Israel, wherein PM Netanyahu is engaged in fierce verbal battle with judiciary and is bent upon taming the judiciary by making the legislature more powerful than judiciary. Benjamin Netanyahu may be right as the elected  representatives cannot be allowed to become mute spectators when development of the country is halted by a series of judicial pronouncements. In Brazil. Supreme Court  created problems for president Bolsomaro. There are reasons to believe that pandemic in Brazil was not handled in an effective way as President and the Supreme Court engaged in verbal fighting.

Strange is the behavior of the Supreme Court of the mighty nation, US which is  an open democracy. In the US Guns Culture is the fundamental of personal freedom and this Guns culture has claimed thousands of lives and there is hardly any month in which innocents are not massacred by the supporters of Guns culture. There is executive command issued by the most powerful president of this planet only to be declared null and void by the judiciary giving license to certain individuals to carry out mass shooting in schools or at crowded place. American judiciary acknowledges the supremacy of the executive but find itself at the receiving end as Guns culture is an embodiment of personal freedom  enshrined in the constitution.  Situations have so worsened that it is said that US might colonist the Red Planet but cannot end the Guns culture by a constitutional amendment which is impossible. What is surprising that one political party openly supports the possession of deadly guns while other party is equally determined to control the violence.

In India situation is alarming. Indian society is caste ridden and politicians cannot do politics without glorifying the caste system. Judges appoint themselves and it is not written in the Indian constitution that a Collegium can dictate the president of India and above all ORDER the PM to accept the appointment of judges as suggested by the Collegium. Recently Indian Judiciary instructed the Government of India that Chief Justice  of the Supreme Court has to be given authority to have a say in the appointment of Chief Election Commissioner and members of the Election Commission of India. Flabbergasted by this judicial verdict diatribe against the judiciary is seen in every section of society..  But Supreme Court shall not allow the executive to interfere in the composition of Collegium as this tantamount to independence of judiciary. By Collegium system the Apex Court has virtually inaugurated an era of dynastic culture in the judiciary. Taking advantage of the fragile nature of elected government Apex Court is behaving like parliament. 

  American president is a politician and he appoints Judge which is further subject to cross examination by politicians in the Senate, and once appointed there is scant chance of lampooning the autonomy of the judiciary, but in India  Independence Of Judiciary is in danger is cried by the judges and the corrupt and disgruntled politician.In such circumstances principles of Check And Balance are disturbed and people suffer.Supreme Court in India cannot bear involvement of politicians in the appointment of judges. Mounting cases of pendency reflect the true nature of judiciary. Lawyers in India have their own ethics and they think themselves as real Lawmakers, most of them argue in the air   and hardened criminals and money launderers are favorite clients of these money hankering lawyers.

 FINAL WORDS,  Independence of judiciary is necessary in an open  democracy. It must be guaranteed and respected by legislature and the executive but in India  judiciary is asserting its authority in a wrong way. Days are not far off when Indian Supreme Court may ask a greater say in the appointment of certain high posts. It even may ask a permanent Judge as a member of the Cabinet Appointment Committee headed by PM. Indian minister of Law has described Collegium system as an alien to the constitution. Judiciary cannot be allowed to overtake the parliament to enforce its own views. Executive in India is virtually meritless and spiritless but in a democracy people are sovereign and executive  owes its primacy to an elected government. This has to be acknowledged.