In a democracy, the citizen is supreme. I (the citizen) will choose ALL my branches of government. Either directly, or indirectly.
In India:
I choose the legislature that makes the laws of the land
I choose the executive that runs my country
BUT
I DO NOT choose the judiciary that interprets my constitution & the laws of my country.
The more I read up about the Indian judiciary and the Collegium system of appointing judges in place since the 1990s, as a citizen, I increasingly question if, since the 1990s, India has actually been a full-fledged democracy.
Constitutionally, there are stark lines between the jobs of the Judiciary, the Legislature & the Executive. However, for several reasons (prime being the emergency & the numerous breakdowns of the executive in the periods between 1989-1991, 1996-1998 & 2010-2014) our Courts have had a free run to wildly cross those lines & do whatever they wanted.
It started off with the setting up of the Collegium. The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges with no external consultation or approval. There is no mention of this ‘collegium’ either in the original Constitution of India or in successive amendments. Also, there is no other democracy in the world that has a collegium system of judicial appointment.
The alternative to the collegium is the National Judicial Appointment Commission.
The NJAC has six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination. The National Judicial Appointment Commission was established by amending the Constitution, passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015. So, could we actually say that since April 14, 2015, the Supreme Court of India is in violation of the Constitution of India?
As things stand right now, the only pillar of our democracy that stands unaccountable to anyone is the judiciary, which appoints itself, decides how it & others should behave, and even makes the law wherever it thinks it ought to. A cozy-club of unelected individuals have been stomping all over our constitution, over legislative and executive territory; even making laws rather than just interpreting them. And all this while over 4 Crore cases (their real work) are pending…
Over the recent past, the Courts have done RIDICULOUS things like:
– ordered a special investigation team to probe charges of wife-swapping among navy officers (WTF?! Why do you care?)
– ordered that licences for dance bars in Maharashtra to be issued in under two days from application (Huh?!)
– took over running the BCCI & appointed an auditor (Hah!) to run it
– ordered the setting up of a new (third) disaster relief fund. We have the National Disaster Response Fund and the State Disaster Response Funds but the courts asked to create a third fund. WHY? Nobody knows. And how will it be funded? Nobody knows.
– When the Arunachal Pradesh crisis was going on, the Supreme Court directly violated the Constitution by issuing a notice to the Governor – something that is forbidden under Article 361 of the Constitution. It was only when the attorney-general pointed this out that the court withdrew the notice reluctantly.
– wrote its own policy on handling drought, and ordered the centre to fund it. The centre refused and politely told the court to sod off as it has its own well funded policy for drought management.
– Bombay High Court asked the IPL to shift its matches outside the state in view of the water shortage in many parts of the state. As if the use of recycled water on one stadium in Mumbai would otherwise be available to people in Vidharbh/Marathwada who need ‘drinking’ water.
– Bombay High Court has actually opined on what % of attendance should a private college demand from its students. When this matter came to it, it should have thrown it out as fast as it came in on the basis that the courts have no jurisdiction on a private college’s attendance norms.
– The SC actually passed a judgement that “allowing religious structures to encroach on public spaces is an insult to God”. Clearly the Supreme Court knows God’s mind, given that its suffering from a massive god complex.
And all this while their own governance standards are TERRIBLE:
– over four crore cases piling up in various courts
– sexual assault & harassment allegations against multiple judges by multiple victims have been casually swept under the carpet
– Shanti Bhushan makes an allegation in open court that eight of the last 16 Supreme Court chief justices were corrupt. The court did NOTHING. That said, it did not cite him for contempt either. This is a bizarre paradox.
So much for being the conscience-keeper (sic) of the nation.
The judiciary has not only crossed that line that separates it from the other branches of government, but has gone past the line that separates it from religion. This, in my opinion has completely eroded the already fragile stature of the judiciary.
If self-appointed group of individuals are going to claim primacy over elected individuals, how is that ok in a democracy?
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