Recent public sparring between the Executive and Judiciary in the presence of none other than the President and the Prime Minister hogged the headlines and brought to the fore the serious differences that exist between these two important arms of democracy. While the relations between them have never been the best, at least in the last several years, they have been aggravated by the despotic measures and brazenly arrogant decisions of the BJP Governments, both at the Centre and the States, taking undue advantage of the brute majority they enjoy in Parliament and Assemblies.
The Prime Minister opined that the Legislature, the Executive and the Judiciary need to work together to strengthen each other as they are part of the same family. But Law Minister, Ravi Shankar Prasad took a stronger approach stating that the “concept of separation of power is as binding on the judiciary as it is on the executive, and that the “law-making must be left in the realm of those elected to make the law”. The founding fathers clearly meant that governance must remain in the realm of those elected to govern by the people of India and accountable to the people of India While independence of the judiciary was important, judicial accountability, probity and propriety are equally necessary”, he stressed. He further questioned why the Judiciary cannot trust the PM and Law Minister’s ability of selecting a “fair judge”. CJI Deepak Mishra, reacting to Prasad’s remarks said that there should mutual respect but there could be no claim for supremacy by any of the wings. “We are not really interested to bring any kind of policy. But the moment the policies are formed, we are allowed to interpret and see that they are implemented” – he asserted. One, however, wonders what accountability, probity and propriety Prasad is talking about when our Legislatures are replete with people with criminal background and cases against them. If they have not been found guilty so far, it is because of regular and frequent postponements of such cases solely to save their seats so much needed for survival of Governments.
True, today we have Judges who are also not above board and some, whose decisions are questionable. But, while they are surely a blot on our justice system and their attitudes and judgments are unpardonable, there is justifiably much more trust of our people in the Judiciary than in our Legislatures and the Executive. In fact, it is our legislators, representatives and bureaucrats who force people into litigations and are responsible for the increase and accumulation of cases in Courts. Perhaps Courts should consider penalising bureaucrats and others for dereliction of duty or complicity in allowing violation of law, thus wasting Courts precious time.
In 2015, the Central Government got a jolt when the 99th Constitution Amendment Act and the National Judicial Appointments Commission Act were declared unconstitutional and void by the Supreme Court. Ravi Shankar Prasad had then described the decision as a setback to “Parliamentary sovereignty”. Legal experts, however, had commented that though the NJAC was against Constitution, the Collegium system of appointing judges was also not flawless and had its own drawbacks. “But between the two evils, this is lesser evil” they felt. Conceding that Collegium system needs improvement and betterment, the Apex Court called for a debate and sought Government help in that direction and to have a Memorandum of Procedure laying guidelines for appointments to higher judiciary in consultation with the CJI and the Collegium. But it clearly refused to allow politicians and the so-called civil society, which would consist of Govt. stooges, to have a say in Judges’ appointments. The Attorney General called it a flawed judgment which ignored the will of the Parliament & Assemblies and eventually of the people for greater transparency. While transparency is surely needed, do our Legislatures, though elected by the people, really represent the people’s will? Do our representatives ever seek their voters’ views or are latter generally ignored after elections? Do hike in salaries and perks of legislators, concessions and exemptions of taxes, highly subsidised food in their canteens, etc represent the will of the people?
The disagreement between the Executive and Judiciary has seriously affected the working of High Courts, with over 400 vacancies in 24 High Courts waiting to be filled and cases pending growing by the day. At the moment 4 HCs are working with half or less than half of the strength and 6 HCs working under acting Chief Justices. While 61 names forwarded to SC Collegium are pending, the Government has not appointed candidates recommended by the Collegium, six months back.
The tussle between the Legislature and the Executive on one side and the Judiciary on the other is indeed unfortunate but it is not really an issue of supremacy. It is that the BJP Governments, both at the Centre and the States are bent upon imposing on everyone their agenda and their own concept of development, which they feel must be achieved by hook or crook before the next elections. In the process, they flout rules and regulations and basic environmental norms, on which they have had severe thrashing from NGTs. It would be long to enumerate other questionable cases like the mandatory Aadhaar Card, which it had opposed when being introduced by Congress. While SC held that right to privacy is a fundamental right, the Government feels that this right cannot be absolute.
The brazenly autocratic Governments presently in power are paving the way for a pliant and submissive Judiciary. Let the day never dawn when Judges and Courts will go the way of our politicians and bureaucrats. Our faith in the Courts may have dwindled for various reasons, particularly the delays, but they are still the only hope in the scum we live in…
(The author is a retired banker)
