Thursday, January 18, 2018

Judicial Muddle – Constitutional Perspective

Judicial Muddle – Constitutional Perspective

 The on-going judicial muddle unleashed by the unprecedented public out-cry of the four senior most judges of the Supreme Court of India against the Chief Justice of India and his administration at the Supreme Court is a matter of great concern and worry for the entire country. The four senior most judges said that everything was not in order at the temple of judiciary of the country. They warned that our democracy would be in danger, if the things were not set right. The learned judges tended to place the matter before the
Add captionPress Conference of Supreme Cout Judges
people of India before it gets late. Obviously, this unexpected turn of events jolted the whole edifice of the constitutional framework based on principles of independence of judiciary, separation of powers among the three pillars of the system that is Legislature, Executive and Judiciary and checks and balances. There cannot be two opinions that the Supreme Court as a watch-dog of the constitution shall be independent and steadfast to stand as the last resort to see and ensure the country is run in letter and spirit as per the constitutional and legal stipulations.  I am not a constitutional or legal expert. The manner in which the Government of PM Narendra Modi including the Law Minister and the Attorney General, the legal community, the media and intelligentsia at large has responded to the crisis has not only surprised me but has also cajoled me to think, as a layman, as to what has gone wrong. I think we are heading towards dangerous times for our democratic polity and constitutional arrangements. I only wish that I am proved wrong. I will raise some questions which need to be answered by the government of the day, legal fraternity, civil society and we the people of India:
·       Is our constitution silent on how to deal with such eventualities when there is some conflict or tension in running the judiciary as per the laid down procedures, precedents, practices, legal customs?
·       If yes, what stops us from making such provisions? If not, why the esteemed judges, ignoring these stipulations, had to go public with their complaints and grievances?
·       Why the government has washed its hands off by saying that it is an internal matter of the judiciary and will not interfere in the matter? Does the Executive have no role in over-seeing that all the organs of the government work smoothly?
·       Why the Chief Justice has not responded to the complaints and accusations of the senior four judges? Is there no authority to ask and advise him to do so?
·       Why the legal fraternity including the Attorney General of India and also the Bar Council etc. are so helpless and blissfully ignorant as to how the crisis should be met in terms of the constitutional and legal stipulations and practices? Will it be correct to leave the matter to the Hon’ble Supreme Court and its judges?
·       Why the so called vocal and free media and also the civil society is not coming forward to educate the people of the country as to what has gone wrong and how it could be set right.

These were some of the questions which come to my mind in this regard. For the last two weeks, the entire judicial system is under strain and stress. The only thing which comes to my mind, again I repeat as a layman, is that all concerned are interested in putting the dirt under the carpet. The entire gamut and thrust of the matter is that the learned judges were working under outside pressure to
subvert the system as committed judiciary or compromised judiciary which they could not hold any longer. Not that the constitution is bad but because “man is vile” as assessed by Dr. Ambedkar himself. The government of the day cannot and should not keep quite. When the whole system is crumbling, why the matter has not been placed before the President of India who is not only the custodian of the constitution but also took the oath to reserve, defend and protect the constitution? President of India is an
integral part of the three organs of the state namely the Legislature, Executive and Judiciary. I wonder, if President of India may like to take a suo motto notice of the judicial muddle created by the vested interests to serve their nefarious designs to hijack and hoodwink the system. It is a high expectation in the prevailing conditions in the country. Only solace which I could find in this regard is to listen to the father of our constitution, Dr. B.R. Ambedkar. He said in the constituent Assembly on November 25, 1949, “The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

Without Comment:-

“This is about an actor that has managed to stay invisible through this crisis: the Modi government. This is, above all, about the relationship between the judiciary and the executive. Specifically, this is about an attempt by the government of the day to secure a pliant judiciary through Bench fixing. In the run-up to the Emergency, Indira Gandhi had demanded and, indeed, almost achieved a “committed judiciary”. The Modi government now seeks to achieve the same objective through a compromised judiciary. The protest by the four judges represents perhaps the last significant hurdle that the Modi government faces in this project. And judiciary is one of the last hurdles that it faces in its drive for total control. That is why the current crisis in the apex court is about the future of Indian democracy.”

Yogendra Yadav’s article “More than meets the eye” in The Tribune of January 17, 2018 

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