THE COUNTER POINT
-Adv.A.C.Philip
i.
The word “politics” has been brought
into limelight once again with the NJAC Act,2014. There are some other common
parlance as being repeatedly used in conjunction with the issue. “Independence
of Judiciary” is another one, as such being, “compromised”, “transparency of
appointments” and “accountability” are to name a few.
ii.
The words ‘polity’ or ‘politics’ are being
considered as something of bad omen by media, as well as the corporate world. In recent times some obiter dicta of
judicial expressions also has endorsed such a view point. The very corner stone
of our constitutional democracy is founded upon polity. If political process
does not exist, the democracy itself does not exist. It is through the
political process, the authorities, let it be legislature, executive or the
judiciary are made responsible to the people of India, the sovereign power,
from whom these so called power centres draws their power and authority. Hence
none of these organs are empowered to denounce and demean its own parenthood.
The word polity in all practical and theoretical purposes are the extension and
foundation of democratic process. Democracy cannot exist, without political
process. Both the politics and democracy are the inseparable ingredients of
same coin. Hence every effort to denounce the political process or political
authority is to denounce the democratic process itself. Such a process if
denounced will ultimately end up in consolidating the power and authority with some
group of people, who may form as the oligarchs. The basic structure of our
constitution is democratic and even the parliament is not authorised to amend
such democratic authority, and least the Supreme Court of India under the guise
of interpreting the constitution, and hence the supreme court is ultra vires in
amending the constitution! That too making the entire judiciary, not answerable
to people of India, who are the sovereign power in all means. Any amendment made to the Constitution of
India by the Supreme Court is null void ab-initio.
iii.
Every institution is functioning
through human beings, who by very nature are likely to err in its decision
making or execution of its authority. It
can be a meaningful functioning, only if checks and balances are existing.
Every power shall be accountable to another. And such chain of accountability
ultimately culminates with the people at large, who are the sovereign decision
makers and judges. The political authority is answerable to the people of India
through the electoral process. In a democratic process, no authority can exist,
not being answerable to anybody. Every worldly powers shall be accountable. The
only one unaccountable power is divine power. Under no stretch of imagination,
it is possible to understand that the judiciary enjoys divine powers, even
though some pretends so! Hence it has no right to enjoy unaccountable powers.
It shall be remembered that ‘ let you be of at any height, the law is above
you’. The law of equity says: ‘Lex non a rege est violanda’ , which means:- The
law must not be violated even by the King.
iv.
The political authority is answerable
to the people through elections. In a democratic process, no authority can exist,
not being answerable to anybody. If at all it exists, it is undemocratic and
the error needs to be corrected. It is at this cross roads the NJAC Act,2014
stands. The constitutional amendment Act,2014 envisages so.
v.
It is told that the power corrupts and
the absolute power corrupts absolutely. That’s
what we have seen for last two decades in our judicial system. Nepotism and
corruption became hallmark of our judicial system, which is supposed to be the
last asylum for the common man against executive excesses. When the executive
gets corrupted, the common man looks upon to the judiciary for solace. But,
here it is the chain which became mad, to borrow an old expression. There are
instances where moneybags were delivered to the residence of judges! There were
instances where the judges and their kith and kin amassed wealth far in excess
of their known source of income. There were sexual harassment charges raised
against some. The ‘uncle judge syndrome’
is prevalent all over India, whereby the close relatives of serving judges are
appearing in the same court and arrange for orders! Even the corporate lawyers
are being elevated to the judiciary who sit upon judging the same corporate’s
litigations! Even worse the nepotism has grown to the extent of ‘progeny judges syndrome’, whereby the judges are being selected and
appointed from the sons of former judges or senor advocates. A look into the
official websites of the respective High Courts and Supreme Court of India
reveals very stunning truths. Around two
third of the appointments, except those filled up by promotions from lower
judiciary are pooled from the kith and kin of serving/retired judges and that
of senior advocates. Its a sharing business, where the vacancies are shared
among the stakeholders, which are securing the said positions for their own
“progenies”. What India needs is a democratic judiciary, rather than a progeny,
adjustment judiciary. A list of judges, who are such progenies are annexed to
this article. The said list is not exhaustive, but only discloses the tip of an
iceberg.
vi.
And further, registration of FIR
against the judges are not possible due to the administrative directive by the
Supreme Court of India. Here the ‘Kings of Justice’ pretends to be above law! If all these are meant by ‘independence of judiciary’, the people of India cannot stand as
mere spectators to such blatant misuse of power, which is derived and delegated
from the people at large. When the judges are proved to be corrupt, they are
transferred! A great deal! Transferring and spreading the corruption from one
part to the other part of nation! Transferring and spreading the cancerous
cells from one part to the other part of the body is not treatment at all. It
needs to be addressed meaningfully. If amputation is required, it shall resort
to even such remedy, even though painful, in the interest of nation, which is
paramount.
vii.
The ultimate power, without being
responsible or accountable to anybody is the one enjoyed by judiciary as of
now. The judiciary is a sacrosanct institution. I write this with utmost
respect and reverence to such a dignified institution. But at the hands of some counted numbers of
irritation, such a sacrosanct institution cannot be demeaned. The nation as a
whole, and every citizens of India is looking upon the parliament to correct
the temporary aberration caused to the prestigious and respectful institution.
And hence is the eventual 99th Constitution (amendment) Act,2014 and NJAC Act,2014.
viii.
It is but natural that those who enjoy
the unjust authority and unaccountable freedom will surely fight tooth and nail
to protect status quo. Anybody who will dare to challenge the authority will be
hooted down or may be termed as usurper of power. It is suggested that the Act,2014
should have been prepared after taking the opinion from Bar Associations and
eminent lawyers. It is out of sheer ignorance, such a suggestion is put
forward. The judiciary is not the private affairs of Bar Associations and some
selected legal firms and senior advocates. It belongs to the entire nation, the
1.29 Act,2014ion people to be exact. The parliament of India is the elected
body which reflects the nation as a whole and represents the aspiration of 1290
million people.
ix.
If the collegiums system is the flawed
but workable system, it needs to be amended. The aberration needs to be
corrected. And we shall not jump into conclusion that the new system as
contemplated by NJAC Act,2014 is unworkable. There are plethora of imaginary
situations raised to question the workability of the said Act. Even when the
present system of collegiums were put to place no such plethora of questions
were raised to question it’s workability. The legislative body cannot envisage
and answer all the imaginative situations which may arise in due course of time
when such an Act is put to practice. But the functional democracy has an
inherent power to tide over such crises as and when it arises. We have a dynamic
parliamentary legislative system to address such situations. But under the
aegis of imaginative situations a legislative Act cannot be prejudiced or
prejudged.
x.
Supremacy to the views of judges in
selection and transfer of judges is bound to be corrected. Under the banner of
depoliticising judiciary, such a supremacy is brought in. If such a logic goes
in, there are other institutions as well, like, CAG, Election Commission, CVC,
the Speaker, and even the President of India, who are supposed to function
without political inclinations. If these judgments are a precedent or is an
ratio decidenti (Judges1,2 & 3 cases)then these institutions shall also
start Appointing their respective successors leaving the executive at lurch.
All those who presently occupying these offices shall be allowed to appoint
their progenies as their successors in their office to make it apolitical! What
will be the resultant democracy!? Any organ of democracy, which are in a chain
of responsibilities are not ultimately to the people of India is undemocratic,
tyrannical and the seat of absolute corruption. To make it a functional
democracy, we need to make every organ answerable to the people through the
polity. It is the single event of superseding the seniority in appointment of
CJI by the Indira Gandhi government in 1970s which are on and off quoted to
declare that the judicial independence is compromised. When the Indira
Government made such a manipulation, it was ultimately made to be answerable.
In the subsequent election people could make ultimate verdict.(1977). That is
the dance of democracy. In such a vibrant and
functional democracy, when the polity faults, the people can correct it
through ballet. But all these two decades when the judicial authority faulted,
the people were made a mere spectator to such a constitutional violations and
undemocratic practices. The oligarchs enjoyed the fruits of unquestionable
power and authority, even usurping into every aspect of executive and
legislative authorities. We have seen plethora of judgments, which encroached
the line of separation of powers! Many of them having violated the fundamental
rights of have-nots! But the people of India, the supposed to be sovereign,
could not make the system accountable to anybody.
xi.
We have seen the Supreme Court by
Judges 1, 2 & 3 cases, the building of constitution is destroyed for being
the plumbing faulty. Under the guise of
interpreting the laws, the judiciary shan’t venture into making of laws. Lest
the Judiciary is empowered to amend the constitution of India. Article 368
empowers the parliament of India to amend the Constitution, which reads as
follows:-
368. [(1)
Notwithstanding anything in this
Constitution, Parliament may in exercise
of its constituent
power amend by way of addition, variation
or repeal any
provision of this Constitution in
accordance with the
procedure laid down in this article.]
3[(2)]
An amendment of this Constitution may be
initiated only by the introduction of a Act,2014
for the purpose
in either House of Parliament, and when
the Act,2014 is passed
in each House by a majority of the total
membership of
that House and by a majority of not less
than two-thirds
of the members of that House present and
voting, 4[it
shall be presented to the President who
shall give his
assent to the Act,2014 and thereupon] the
Constitution shall
stand amended in accordance with the terms
of the Act,2014:
Provided that if such amendment seeks to
make any
change in—
article 54, article 55, article 73,
article 162 or
article 241, or
Chapter IV of Part V, Chapter V of Part
VI, or
Chapter I of Part XI, or
any of the Lists in the Seventh Schedule,
or
the representation of States in
Parliament, or
the provisions of this article,
the amendment shall also require to be
ratified by the
Legislatures of not less than one-half of
the States 5***
by
resolutions to that effect passed by those
Legislatures
before the Act,2014 making provision for
such amendment is
presented to the President for assent.
[(3) Nothing in article 13 shall apply to
any
amendment made under this article.]
[(4) No amendment of this Constitution
(including
the provisions of Part III) made or
purporting to have
been made under this article [whether
before or after the
commencement of section 55 of the
Constitution (Fortysecond
Amendment) Act, 1976] shall be called in
question
in any court on any ground.
(5) For the removal of doubts, it is
hereby declared
that there shall be no limitation whatever
on the
constituent power of Parliament to amend
by way of
addition, variation or repeal the
provisions of this
Constitution
under this article.]
xii.
There is another argument, which says
the entire judicial spectrum as of now
is appointed through the collegiums system of appointments and if the
system is bad, those who are appointed through the same method are also shall
be bad, or else, shall leave the system. It may be open to each individual to
decide their own fate. Nobody prevents any body from putting thier
own papers. But for arguments sake, if
this logic is accepted, then, the same should have been applicable while
deciding the judges 1, 2 & 3 cases. Those who were the product of executive
appointments declare that the said form of appointments as unconstitutional!
What an irony! The best way for them would have been to put in their papers and
say that the system through which they were appointed were wrong! It could have
been the moral courage! Even when enjoying the benefit of a given system, the
beneficiaries declared that the given system is illegal, with out any rhyme or
reasoning. In the name of ‘independence
of judiciary’ the new mechanism cannot be opposed. The independence of
judiciary cannot be subservient to the selected members of bar as well as
bench. The judiciary belongs to the entire nation and not the private property
of a selected few. The appointments, promotion and transfers are the public
affair and not the drawing room affair of certain counted peoples, better not
to name them. The judiciary needs to be liberated out of such vested interests
and truly make it an independent one to serve the purpose of nation. We need to
restore the independence of judiciary.
xiii.
Again it is learned that the Supreme
Court is sitting on the issue of judging the constitutional validity of the
given Act and the Constitutional Amendment Act,2014. Once again the Supreme
Court is violating the principles of natural justice. It is said that : ‘In propri cuus nemo judex’ or ‘Nemo
debet esse judex in propri causa’ which means, no one should be judge in his own cause.
Hence the Supreme Court is clearly violating the given principle if it sits on
to decide the appointments to itself. Further the Supreme Court shall not embark
upon the law making mode. If it ventures so, it will be the death knell of
democracy in India. Under the doctrine of separation of powers, the parliament,
which has three parts are only empowered to make the law. The judiciary shall
restrain itself to the role of interpreting the law and respect the doctrine of
separation of powers.
xiv.
The new Act,2014 is criticised
for being moved in a haste without adequate consultations. 2 decades of
consultations and discussions are being considered as inadequate and does it
mean that the entire century shall be spend on discussing the issue? When the
judges-3 case subverted the constitutional provision, without due process of
amendment, such an argument was not placed at all. The appointments to the
judiciary are not the judicial affair. If anybody believes so, it is totally
under the misimpression and total ignorance.
The appointment to the judiciary, the promotions and the transfers are
national affairs. The entire nation is interested in it’s outcome.
xv.
Some criticise that the Act,2014
should have been referred to select committee. When the government doesn’t want
to commit, it committees! At least now
we have a government, which wants to commit to the cause of people, elected by
the people, constituted of the people. The more the process is delayed by
forming or referring to committees, the more the aristocratic judiciary will be
protected, which if measured by any yardstick is continuation of undemocratic
and unconstitutional mechanism.
xvi.
The requirement of knowledge of law
for the eminent persons as members of
NJAC is another question. If all the members
are from the same faculty, then where is the validity of different
opinions? To judge the integrity or suitability of a person, the requirement of
legal knowledge is not essential. It is not essential to check out a corrupt.
The three legal professionals, along with the law minister are competent enough
the judge the professional knowledge of a candidate. Two eminent persons are
the representatives of the people of India, who are looking out for social
visionaries as judges, which runs beyond the realm of mere legal knowledge. We
had many visionary judges, all who were appointed by the political executive.
xvii.
Surely the ‘Ache Din’ for the selected few in the judicial echelons is over. It
is the “Ache Din” for the people of
India. All these past two decades, the nation was regretting for the
constitutional amendment made by the Supreme Court by way of Judges- 2 &3
judgment. The judiciary belongs to the nation and it’s people, not to the
selected few.
-Adv.A.C.Philip
