The institutions that brought our country this far, are under severe strain. On some strange unheard of reason, the speaker has adjourned the Lok Sabha for 8 consecutive days without taking up the notices of no confidence against the government. That House not being in order as a reason for not taking up a no confidence motion shows the failure of the speaker to exercise powers to take up for discussion on the most important issue – a no confidence motion. Nobody has doubts over the numbers of the government but the manipulation of practices and principles is shocking.
We have not seen an impeachment motion against the Chief Justice of India (CJI). The present opposition also does not have the numbers to carry an impeachment motion, but it only proves that the office of CJI has lost the sheen. A social media message ‘that Election Commission shall not merge with the ruling party at this stage but shall only give outside support to it’ went viral a few days back.
Suddenly the important pillars of our democratic edifice seem to be giving way. No doubt as elections come near, there is political one upmanship but the two pillars EC and SC, that stood the test of time and provided the hope were never doubted by the people. EC and SC were the two shining stars that provided hope, amidst failure of parliament and the government. Suddenly the fairness and integrity of the EC and SC is put on test.
T.N. Sheshan and J.M. Lyndoh provided the required efficiency and credibility to the Election Commission. The present CEC looks like their poor cousin. The delay in declaration of poll schedule of Gujarat elections has not been satisfactorily explained. How could a BJP functionary reveal Karnataka election dates before the EC press conference? The double standard in responding the media coverage of opposition and ruling party has heightened the suspicion of EC being packed with loyal officers. The EC reached the lowest point in history at Gujarat elections time. It’s reputation got battered in the APP MLAs disqualification case.
It is strange that even institutions like the chief Information Commissioner, the chief vigilance Commissioner & director of CBI which are not constitutional bodies have a broad based collegium for appointment but EC is solely in the hands of government.
The efficacy of all institutions depends on who mans them. The happenings at the Supreme Court shows the extent to which the government would go to control the body that deals with cases that have huge political ramifications. We believed that transparency and accountability ought to come in the selection of judges. We attacked the self perpetuation with no parallels in the world where judges appointed judges. We believed our finance minister when he thundered ‘Indian Democracy cannot be by the tyranny of the unelected and if elected are undermined, democracy itself would be in danger”.
Four senior most judges after the CJI opened a can of worms when they addressed a press conference in January this year in an attempt to save their souls as they claimed and spoke to the nation directly questioning the CJI. It could be said that was a huge embarrassment for the institution cherished by millions which till then like Cesar’s wife, had been above suspicion. Decorum, tradition and convention kept everything wrapped to keep up to the belief of blind folded lady justice.
Like they cannot afford a Sheshan or a Lyndoh now, they cannot take chances with the likes of Khanna, Venkatachaliah, Lodha or Kehar. No more ‘risky judges’! Gopal Subramaniyam’s elevation imbroglio is now history. CJ of the Himachal Pradesh HC Joseph J who brought back a Congress CM after setting aside President’s rule in Himachal Pradesh is not getting the green light. What happened to Justice Krishna Bhat of Karnataka is disgraceful. A lady judge’s complaint withheld his elevation for two years. Two former CJIs, current CJI and former CJ of the Karnataka HC found no merit in the lady judge’s complaint. CJI J.S. Kehar, Deepak Mishra J and Chalameshwar J. wrote “there was no material even with intelligence bureau to even prima facie affirm the veracity of allegations”. In November 2016 C.J. S.K. Mukherjee of the Karnataka HC found the complaint to be baseless. The current HCCJ appointed inquiry at the instance of the government upon the same complaint of the same lady judge. The union government directly approaching the HC and the HCCJ acting on such a complaint when the earlier CJ had cleared the judge is unheard of and sets new benchmark of throwing much at judges to avoid their elevation.
The central government defeats the collegium’s recommendations by simply sitting over the files taking advantage of it not being time bound to clear the recommendations. Live law research reveals that about 143 names cleared by the Supreme Court collegium are pending at the government level. It is clear that the present government wants ‘judges who may not know the law but knows the law minister’ It is clearly an attempt to pack the highest court with ‘committed judges’.
Had the National judicial appointments commission been upheld, I am sure the law minister and the two ‘eminent jurists’ would have been the government’s points men in packing the judiciary committed not the constitution, but to the law minister. The present government failed to get an acquittal on the charge of attempt to ‘pack’.
All institutions are getting chipped bit by bit. Let us not forget the story of the Weimar Constitution that was moulded for big changes. The constitution meant for a democratic parliamentary republic technically remained in force throughout the Nazi period 1933-45!!
(The writer is practicing advocate, senior faculty in law and political analyst).
