POLITICS IN INDIA AND JUDICIAL EXPRESSIONS

The word “politics” has been brought into limelight once again with the NJAC Act,2014. There are some other common parlances 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.       

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 centers draw 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 terminology ‘political’ or ‘politics’ is not confined to the party politics itself. As we discussed, the party politics is the essence of democratic process. But that does not means, politics means only party politics. Even in a family there may be internal politics to secure wealth, fame, name, inheritance, relations, authority, power etc. So that too is a matter of politics. So wherever such issues are in conflict, there is a complex matrix of political game. Everybody will be accusing other of playing politics, even though they all together are party to the ongoing political game. It do not have any colour of flag or symbolic representation. Still the politics will be intense to secure the so called benefits.

 As far as the nation is concerned, the struggle to secure power is a political one, even when it does not have any party colours. In some countries, when the military assumes political power, it is also politics. The reason being the essence of controlling the executive powers of the nation is the national politics. In a functional democracy, that is exercised through the party politics. But, in other form of governance, the national politics may not be in the form of party politics. In Myanmar, the military ‘Junta’ was controlling the executive powers of the nation. So such exercise of executive powers are part and parcel of national politics. Even though the said exercise of executive powers are done by the military authority, they are the political leadership of nation, as what they are exercising is political power itself. If a monarch rules the nation, what he assumes and exercise is the political power of the nation. The very essence of nationhood or statehood and it's existence is political. Hence the map which shows the boundaries of nation/state is known as political map. So, the executive powers, whoever is exercising is playing the national politics, even if it is done under the colours of military, political parties, judiciary, judges, oligarchs, monarchs or any other formations, in whatever name it is called.

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.

The selection, recommendation, appointments, transfers and promotions of the judges of higher judiciary is essentially the executive functions. Hence, irrespective of who exercises it, the function or power exercised is the executive powers of the nation, which even though is vested with the union government by virtue of Article 53, of the constitution, now assumed by judiciary by it's own pronouncement of judgments in it's own favour, encroaching into the powers, which it has no role to play, whatever is exercised is political power and the functions political in nature essentially.

To decide the nature of function, who exercises it is of no relevance. What is relevant is the nature of function exercised itself. Based upon the nature of function, it shall be decided, whether it is political or judicial.

 So, when the political executive exercises the executive powers, it is a misnomer to describe it as political interference. It is only an exercise of political powers by the union executive. When the judiciary tries to assume the said powers either through the collegium or the route of PIL, it is to be termed as judicial interference with the executive and political powers. So, in the name of judicial independence and judicial supremacy, what is achieved is the exercise of political powers by the judiciary itself, which is judicial interference into the executive powers, and later even to the constituent powers of Parliament as well. The only difference is that it is not registered as a political party or is not allotted with a political symbol or flag. Even when the judiciary is not a part of party politics, when it encroaches into and exercises the executive powers, what it is playing is national politics itself, controlling the money, wealth, authority, power, resources, and so on. It is pure politics, nothing but the politics. Even though judicial supremacy is established by it's further judgments, nullifying the constitutional supremacy, by causing executive amendments in the name of interpretation, it will be the politics of the nation, nothing else. Even when the executive functions powers of the nation is vested with the president of India, under Article 53 of the constitution, which he shall exercise in accordance with the aid and advise of the council of ministers, under Article 74 of the constitution , the judgments in judges 2,3&5 cases goes against these articles and hence per incurium. The result is the judicial over reach in to the political powers and eventual creation of oligarchy. Now a super cabinet, called collegium is exercising he said executive and political powers, by virtue of these judgments, which eventually encroached into such executive powers with respect to judicial appointments and transfers. 

The said judgments failed to take into consideration, what is laid down by 13 judge bench of the supreme court in Keshavananda Bharati case, which is known as doctrine of basic structure. 

The intention can clearly  be drawn from the observation in the Judges-2 Case by the Supreme Court:

"Solmon's throne was supported by lions on both sides; let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty."

83. In terms of the above Biblical apologue in the old Testament as coined by Francis Bacon in his 'Essay of Judicature', the vital questions which are of great constitutional significance affecting the Indian Judicial system that are posed for deep consideration can be figuratively formulated thus:

(1) Whether the present day 'Solomon's throne (symbolizing the majestyof our justice system) is fully supported by the 'Lion's (symbolizing the legislature and executive) on both sides?

(2) Weather the 'Lions' are still under the 'throne'?

(3) Whether, the 'Lions' are circumspected from checking or opposing any of the points of sovereignty of the judiciary (i.e. judicial sovereignty)?

(4) Whether it is for the 'Lions' to pronounce the name of 'Solomon' and his successor to occupy the throne?

(5) Whether 'Solomon' has any right of proposing any celebrated structural reform to his 'House' (symbolizing the judicial structure) or is it for the 'Lions' to make such proposal to 'Solomon's House' without reference to Solonon?

(6) Is it for the 'Lions' to make any alteration to the structure of the

Imperial State of 'Solomon's House' and propose sweeping reforms

whether Constitution and composition of a 'Kingdom of Solomon' - even without reference to Solomon or even inexcusably ignoring any suggestion of Solomon?

(7) Whether under the present scheme and procedure proscribed and followed, 'Solomon' is made to sit on the chair of handicapped sub-silentio instead of his own 'throne'?"

So are we travelling 3000 years back in our mode of Governance or growing further in modern civilisation and vibrant democracy?