There was an old story, which we learned in our childhood. Once
a noble person was gifted with a dog in the name of sheep. After performing his
duties, he carried the dog on his shoulders, thinking that it is a sheep.
Enroute to his residence on a bridge, some people, his critics, met him and
asked, why he, being a saint and noble man is carrying a dog? Then he realised
that, he is carrying a dog inadvertently. He dropped the dog on the shores of
the bridge and left to his residence. After a month or so, the same critics
jeered him, tauntingly asking, “ Why were you carrying the dog on that day!?”
The noble man answered:-
“I had dropped and left that dog then and there itself. But why
are you still carrying it in your mind?”
So, it is not always
physical burden, which makes us really burdensome. When we carry some past
memories and it's burden makes us to think and act in a prejudicial manner,
then it is the greatest burden to our personality. This is almost true our
experience with the judicial appointments as well. It is true that, during
emergency, then Union executive tried to interfere with judicial appointments.
Constitution (42nd amendment) Act was intended for such efforts.
Even the judiciary did not stand with the people for protecting their
Fundamental Rights. But, people of India protected the judiciary and their own Fundamental Rights as well through
the ballot and polling booth to elect a new parliament, so that the wrong
interferences were corrected, and moved forward. People of India were wise
enough to drop the pretended ‘dog’
there itself and move forward in the collective interest of the nation. But it
is sad and disgusting that the judiciary is still carrying that interference
and continuing to function under deficit of constitutional trust. Even after
almost four decades, that conjectural ‘dog’ is still being carried
psychologically and functionally. It a horrifying experience that the three and
half decade prior dropped issued is still haunting a primary institution of the
democratic nation. It's surprising really that judiciary, not only carried it
forward on it's shoulders, from where people dropped it four decades ago and
even enlarged and amplified it. During emergency it all started with the
judiciary VS. Executive logger heads. Then During the Judges-1 case, it was
further enlarged to judiciary Vs. Constitution. In judges 2 & 3 cases, it
was further enlarged and amplified as judiciary Vs. Parliamentary democracy. In
judges-4 and 5 judgments it further got enlarged and amplified into the
loggerheads of judiciary Vs. The People of India. It is feared that, if this
can grow into a stage of judiciary Vs. Nation? Is it called judicial
independence? Time will only be able to tell us. Or is it what J.Krishna Iyer
lamented as “Judicial Terrorism”? Otherwise, how can judicial independence and
National independence can co-exist? How can judicial Supremacy and Constitutional
Supremacy co-exist? How can there be an ‘imperio
in imperium’? There cannot have
one sovereign under another sovereign.
If so, either of one is not in reality but only hypothetical and
utopian.
ERA
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CONCEPTUAL CHANGE
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Pre-Emergency
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Constitutional Trust based upon the people’s Constitution and
democratically elected government.
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Emergency
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Judiciary Vs.
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Executive
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Judges-1 Case
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Judiciary Vs.
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Constitution
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Judges 2&3 Cases
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Judiciary Vs.
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The Parliament
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Judges-4&5 Cases
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Judiciary Vs.
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The People of the nation
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In effect, by judges-2,3&5 judgments, the Supreme Court of
India was negating Article 74(1) & 75(3) of the Constitution.
When the appointments and the transfers of the judicial
mechanism is decided by The President of India, he is doing as the head of the
executive, under the aid and advise of his council of ministers. The parliament consists of three organs as per Article 79 of the
Constitution of India and the Supreme Court of India is not the organ of
Parliament and not vested with the authority to amend the constitution in
whatever manner may be and in this instant case entered in the realm which runs
even beyond the scope of Parliament’s Authority to amend the Basic Structure as
per the Judgment of the Supreme Court of India itself in Kesavananda Bharati v.
State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461..
The judiciary is the organ which is entrusted with the greater
function of interpretation of law and not in any way shall enter into the realm
of making the law. The Parliament is known in the common parlance as the law
makers of the Nation and the Judiciary as the Law interpreters. In no
circumstance, whatever compelling may be, the law interpreter shall enter into
the territory of the law maker. The system of appointment and transfer of
judges is bound to follow the spirit of Article 74 of Constitution of India, by
which (s)he is functioning under the advice of Council of Ministers.
Article 74 of the Constitution of India Reads as:
“74. 2[(1) There shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advice:]
3[Provided that the President may require the Council of Ministers
to reconsider such advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such reconsideration.]
(2) The question whether any, and if so what, advice was
tendered by Ministers to the President shall not be inquired into in any
court.”
The council of Ministers is Jointly responsible to the House of
People (LokSabha) vide Article 75 of The Constitution of India. The said Article reads as follows:
“75. (1) The Prime Minister shall be appointed by the President
and the other Ministers shall be appointed by the President on the advice of
the Prime Minister.
1[(1A) The total number of Ministers, including the Prime
Minister, in the Council of Ministers shall not exceed fifteen per cent of the
total number of members of the House of the People.
(1B) A member of either House of Parliament belonging to any
political party who is disqualified for being a member of that House under
paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as
a Minister under clause (1) for duration of the period commencing from the date
of his disqualification till the date on which the term of his office as such
member would expire or where he contests any election to either House of
Parliament before the expiry of such period, till the date on which he is
declared elected, whichever is earlier.]
(2) The Ministers shall hold office during the pleasure of the
President.
(3) The Council of Ministers shall be collectively responsible
to the House of the People.
(4) Before a Minister enters upon his office, the President
shall administer to him the oaths of office and of secrecy according to the
forms set out for the purpose in the Third Schedule.
(5) A Minister who for any period of six consecutive months is
not a member of either House of Parliament shall at the expiration of that
period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as
Parliament may from time to time by law determine and, until Parliament so
determines, shall be as specified in the Second Schedule.”
The president of India is supposed to and duty bound to function
in accordance with the aid and advice of the democratically elected council of
ministers. Council of Ministers is
answerable to the people, ‘We the People’ of India through democratic process.
Democracy being a basic structure of the Constitution, the said process cannot
be amended by the Supreme Court also. In case the advice by the Council of
Ministers and the consultative opinion of the CJI are divergent, the president
is duty bound to act according to which one? The literal interpretation is as clear
as day light:
Aid
and Advise of the Council of Ministers
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Consultation
with the CJI
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Democratically elected body.
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Not so, but appointed body.
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Answerable to
Parliament of India, inter alia to the People at large.
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Not answerable to anybody.
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Aid and advise
binding [Explicitly provided under Proviso to Article 74(1)].
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Consultation
only, not binding (Literal
interpretation) . Only an Expert Opinion. Not binding, but aiding to come to
a conclusion.
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The aid and
advice are unique and sui generis. Only one body to aid and advise and that
is binding.
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The
consultation process is wide and the consultation with the CJI is one among
many other consultations as provided by the Constitution. The president is
free to make his mind, if the opinions rendered are diverse.
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There is only
one body giving aid and advise and hence there is no possibility of diversity
of opinions.
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If one
consulted demands primacy in decision making, it is pre-empting the other
consultation process and their opinions. This includes the opinions of the
other judges of Supreme Court and High Courts.
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SCI shall give
effect to both the provisions
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The president
of India is duty bound to function in
accordance to the aid and advise of the Council of Ministers. All Advises are
binding, if reiterated by the Council of Ministers.
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Nothing is
binding. Even the Presidential reference, under article 143 of the
Constitution, the SCI decision is not binding on the president.
Even the
judgment of death sentence of SCI is not binding on the President of
India.
Then how can an
administrative consultation be binding on the President of India?
The Constitution
is clear and there is no room for ambiguity.
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Governance of Nation includes,
appointments also, top to Bottom.
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The following ratios made by the SCI will make it more
understandable:
Sl.No.
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Titles
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Citation
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Ratio
Decidenti
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Remarks
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i
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Shamsher Singh v. State of Punjab***
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(1974) 2 SCC 831
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the President has to act on the aid and advice of the Council of
Ministers as prescribed in Article 74 of the
Constitution. The Supreme Court held that the President acts on
the aid and advice of the Council of Ministers with the Prime Minister as the
head in all matters which
vests in the executive whether those functions are executive or
legislative in
character. It was further observed in the said decision that the
President does not exercise the executive functions personally.
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As pointed out by Justice Krishna Iyer, speaking for himself and
Bhagwati, J., in a concurring opinion in Shamsher's case, the justification
for vesting of such powers in the Council of Ministers is that the Council of
Ministers is responsible to Parliament.
under
the Cabinet system of Government, as
embodied
in our Constitution, the Governor is the formal Head of the State. He
exercises all his powers and functions
conferred
on him by or under the Constitution with the aid and advice of his Council of
Ministers. That, the real executive power is vested in the Council of
Ministers of the Cabinet.(Quoted in
Page 61, of CVC Case)
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ii
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:
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it was a fundamental
principle of the constitutional scheme that every organ of the State, every
authority under the Constitution, derived its power
from the Constitution and had to act
within the limits of such powers.
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||
iii
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R.K. Jain v. Union of India
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(1993)
4 SCC 119
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We reiterate that Government is not
accountable to the courts for the choice made but Government is accountable
to the courts in respect of the lawfulness/ legality of its decisions when
impugned under the judicial review jurisdiction. We do not wish to multiply
the authorities on this point.
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That, the real executive power is
vested in the Council of Ministers of the Cabinet.
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***”It is a fundamental principle of English Constitutional law
that there must be no conflict between the King and his people, and
consequently no conflict between the King and the, House of Commons which
represents the people. It is this principle which is responsible for three
settled rules of English Constitutional Law :
That for every public act of the King, his Ministers must accept
responsibility,
That the Sovereign must never act on his own responsibility that
is, he must always have advisers who will bear responsibility for his acts; and
The Power of the Sovereign to differ from or dismiss his
Ministers is conditioned by the practical rule that the Crown must find
advisers to bear responsibility for his action and those advisers must have the
confidence of the house of Commons.
This rule of English Constitutional Law is incorporated in the
Constitution of India. See Articles 74(1), 75(3) and 361(1) and second proviso
which clearly point to the conclusion that the Indian Constitution envisages a
Parliamentary or "responsible" form of Government and not a
Presidential form of Government. The powers of the, Governor as constitutional
head are no different-See Article 163(1), 164(2) and 361(1) and second proviso.
The Supreme Court of India has consistently taken the view that the powers of
the President and the powers of the Governor under the Indian Constitution are
akin to the powers of the Crown under the British Parliamentary system. See
Ramajawari Kapur v. State of Punjab [1955] 2 SCR at 236- 237 (Mukherjea, CJ.),
A. Sanjeevi Naidu v. State of Madras [1970] 3 SCR 505 at 511 (Hegde J.); U. N.
Rao v. Indira Gandhi [1971] Supp. SCR p. 46 (Sikri, C.J.). In the last case
this Court held that Article 74(1) was mandatory and therefore the President
could not exercise the executive power without the aid and advice of Council of
Ministers; but the principle of the decision is not restricted to the exercise
of executive power alone. A similar view with regard to the powers of the
President and the Governor under our Constitution is expressed by
Constitutional lawyers………………………………………………………………….”
And ultimately the Parliament of India is responsible to the
people of India through the elections. Hence the chain of events ultimately
culminates with the people of India, who are the sovereign, as declared by the
preamble of the Constitution, which is the gateway to the Constitution.
Every action, let it be small, or big, let it be taken by the
small clerk or the Hon’ble President of India, or even Judiciary shall be
ultimately responsible to the People of India through a chain of responsibility
as drawn up by the visionary constitution makers. 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 ballot. But all these
two decades when the judicial authority faulted, the people were made mere
spectators 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. Then only, the people of India can be declared as the
sovereign and roll the greatest democracy in the world to the ultimate epitome
of salus populi suprema lex, nay, ‘welfare
of the people is the supreme law’. The
greater founding fathers of the Nation had that vision in their mind and the
same was translated in to letter and spirit while adopting to the adult
franchise also.
But it is painful to realize that the judgment in the judges
appointment case thrashed such a vision and thrown the democratic principle
into the foul drainage. The rusty parliamentary democracy is put into burning
chambers of judiciary to mould a sharp weapon of collegium, having double edges
to cut both sides. It threw the democratic control over the judiciary into
coma, if not full stop, resulting into convulsions. Now the judicial system
grabbed the authority of appointment and transfer of judges and the advice of
the Supreme Court collegium is binding on the President of India against the
principles of the Article 75 of the Constitution, which cast a responsibility
to the President to act upon the advice of the Council of Ministers. The
Constitution envisages that the president thus acting upon the advice of the
council of ministers is ultimately responsible to the people of India, through
the Parliament. Hence, it was the people of India, who were appointing or
transferring the Judges of India (Supreme Court and High Courts) through its
authorized representatives. The Council of Ministers as well as the President
of India, while acting upon the chain of events, it is the people’s sovereign
which ultimately is the supreme one in the constitutional democracy takes the
decision and executes through its appointed agents, namely the council of
ministers or President of India, all being elected directly or indirectly, and
is answerable to the people for any of their commission or omission whatever
may be.
So far as the issue of amendability of the Constitution is
concerned, it was held that Constitution is amendable to the extent it does not
affects the basic structure of the Constitution. However this judgment was not
specific as to what forms the basic structure of the Constitution. Judges gave
their own examples of basic structure and enumerated few of them. There was no unanimity of opinion within the
majority view either. There are
diversity of opinion among judges itself, what is the basic structure of the
Constitution. The plethora of opinions, which scattered the said enumeration of
basic structure are as given below:
According to Justice H.R.
Khanna, democracy was a basic feature of the Constitution and included free and
fair elections.
Justice K.K. Mathew held that the power of judicial review is an
essential feature.
Justice Y.V. Chandrachud
listed four basic features which he considered unamendable:
• Sovereign democratic republic status
• Equality of status and opportunity of an individual
• Secularism and freedom of conscience and religion
• Government of laws and not of men i.e. the rule of law
Sikri, C.J. explained that the concept of basic structure
included:
• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive and
the judiciary
• Federal character of the Constitution
Shelat, J. and Grover, J. added two more basic features to this
list:
• The mandate to build a welfare state contained in the
Directive Principles of State Policy
• Unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter
list of basic features:
• Sovereignty of India
• Democratic character of the polity
• Unity of the country
• Essential features of the individual freedoms secured to the citizens
• Mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features
were to be found in the Preamble of the
Constitution and the provisions into which they translated such
as:
• Sovereign
democratic republic
• Parliamentary democracy
• Three organs of the
State
So ultimately the doctrine
of basic structure remains to be the
structure made of wax, which takes the desired shape instantly, in accordance
with the whims and fancies of the judge. Anything can be moulded into this
structure, by justifications, and anything, which the parliament Acts can be
nullified under ever flexible and ever changing shape and structure of this
doctrine. Rather the doctrine of basic structure lacks any concrete structure
at all and it's only a mouldable and mutable theory, which can suit every
person according to his requirement.
Even when the theory of basic structure never envisages that the
‘Supremacy Of Judiciary’ and ‘Independence Of Judiciary’ as the basic structures
of the constitution, the judges-2,3 & 5 judgements remoulded this wax
structure to serve the interest of judiciary and caused amendment to the
constitution under Article 32 of the Constitution. The irony is that the
doctrine of basic structure declares the plenary power of the parliament to
amend the constitution, including the Fundamental rights, and the only
limitation is not to destroy the basic structure of the constitution. Whereas
under the shadow of the said doctrine read with
Article 32, the Supreme Court amended the constitution in judges-2 &
3 judgements and nullified the amendment of constitution under Article 386 by
parliament, vide judges-5 judgment, even though none of the above said basic
structures were touched by the said amendment.
When the things stood like this, the bolt from the blue happened
and the constitution was amended just by the pronouncement of the judgment by
the Supreme Court in the Judges Appointment case. It was an amendment to the
constitution of India, in all virtual sense without changing even a syllable in
the written text of the given document!!
The basic feature of the constitution was amended! It is declared by the
Supreme Court that the Parliament of India do not have an authority to amend
the basic structure of the Constitution of India. The doctrine of basic
structure emerged out of the wits of the same apex court. And the same apex
court in another instance, when it came to it’s own issue, jumped the wall and
amended the constitution without any reasoning or application of mind. The only
application was that it assumed it’s own jurisdiction, encroached into the
parliamentary functions, without being answerable to anybody, even to the
people of India. The chain of responsibility as envisaged by the constitutional
makers was wrecked or was devastated by the said judgment and the people of
India are made mere spectators of the authority of Judiciary. Now the Judiciary
is not answerable to anybody for it’s conduct, either administrative or
judicial. An autocratic, tyrannical, dictatorial, authoritarian, absolute and
domineering system has been placed instead of the ever responsible,
accountable, answerable and democratic institution. And the hazard took place
without the connivance of the Parliament of India. The Supreme Court, in one
tongue declares that the basic features are beyond the scope of amendment and
on the other hands amends the basic feature of democratic process overnight
without any authority. Now the President of India is forced to accept and act
on the advice of the Supreme Court Collegium, in contravention of Article 74 of
The Constitution of India- a binding dictate. But the Supreme Court Collegium
is in turn not answerable to the people of India, who are the sovereign or to any other authority. Hence for around last three decades it is in
the process of building an autocratic, dictatorial, aristocratic and oligarchic
organization and that is almost done also. The collegium is not answerable to
none, neither to the Parliament of India, nor to the President of India, or to
the ultimate People of India.
In deciding the matter or amending the constitutional provision
by judgment it even violated the very equity that: ‘Nemo debet esse judex in
propria causa” - No one can be judge in his own case. But the apex court
assumed the authority to amend the Constitution of India in it’s own case,
where the same court itself was a party to the issue, declared the judgment on
it’s own cause, in it’s own favour, implemented it and enjoys the fruits
without being answerable to anybody or even to the sovereign people. Hence the
people, or the common people apart from those oligarchs, under whose dictates
the decisions are implemented are outside the periphery of decision making ,
either administratively or judicially.
The whole story started when the senior judges were superseded
by the then government in appointing the Chief Justice of India in 70s. But,
the matter the critics ever cunningly forget is that the same government or the
executive, which made such an autocratic decision was ultimately answerable to
the people and in the next election, in 1977, the sovereign people made the
ultimate verdict. That may not be the sole reason, but surely one of the
deliberation in the said election. Those
were the times when constitutional liberties and civil rights were the point of
discussion for the common man in the time of election. And the people delivered
the verdict. 1971 election was fought on
the issues of fundamental rights and directive principles of state policy. The
issues were discussed thread bare in public during election campaigns. But with
the collegium system in place, the constitutional liberties and civil rights
are no more electoral issues, as the electorate are deprived of the decision
making on such realms. Now only corruption and money making comes out as
electoral issues. Is it the result of better literacy or the erosion of
authority of electorate? The practical
sense says that it is the erosion of authority to the electorate, caused
through the said judgments. Judges appointments or separation of powers are no
more an electoral issue.
Now in the alternative, if the Collegium ever errors in it’s
decision, and is bound to err as is not answerable to anybody, what remedy, the
people of India, the sovereign has got? This question remains unanswered. Can
the apex court declare that the people of India shall stand as a silent
spectator to the highhandedness of administrative action by the Supreme Court, even if it is erring in it’s
action? The said verdict has made the
sovereign of the people to the silent spectators without any authority. There
are no questions, there are no answers, and there is no answerable chain of
authorities. Further the said judgment made those who are in service to the
nation as the masters of the people, taking the rights to rule them, in a way
even against the collective will of the people. It can take it’s own decision
and can judge or evaluate it’s own action without being answerable to any other
authorities. This may be the replication
of the authority enjoyed by some of the most ruthless monarchs in history.
Chain of responsibility ends with the people of India, Rather
“We the people of India” in the democratic process, which is the basic
structure of the constitution, even beyond the scope of Parliament of India’s
power to amend it. The resultant change
in the process ended up in the amendment of the constitution even without the
process of law or the constitution. The constitutional amendments are to be
made effective by the parliament of India as per Article 368 of The
Constitution.
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