Attempts to curb the independence of Judiciary

 

Attempts to curb the independence of Judiciary

As a corollary to weaken and subvert the democratic institutions by the current regime at the Centre, of late subtle attempts are being made to erode the independence of judiciary. The Union Law Minister Kiren Rijiju, participating in the Sabarmati Samwad program organized by Panchjanya, a weekly magazine of the RSS, on 17 October 2022 at Ahmedabad, stressed the need for the three organs of the Government-Executive, Legislature and Judiciary- to work within their pre-defined domain as per the Constitution. He said when the Judiciary deviates, there is no mechanism for course correction, and it gives rise to concerns regarding Judicial Activism. In the Rajya Sabha on 15 December, he asserted that ‘the Supreme Court of India being a Constitutional Court should not hear bail applications and frivolous Public Interest Litigations’.

 

And now the Vice President of India Jagdeep Dhankhar has targeted the Supreme Court and questioned its ruling on the Basic Structure of the Constitution. In 1973, a 13-judge bench of the Supreme Court ruled by 7-6 majority in the Kesavananda Bharati case that   Parliament can amend any provision of the Constitution, so long as the Basic Structure of the Constitution not encroached upon. Some of the features of the Basic Structure identified by the Court include-supremacy of the constitution, unity and sovereignty of India, parliamentary democracy, secular character of the constitution, separation of powers, rule of law, judicial independence and free and fair elections. In other words, the Parliament’s power to amend the Constitution, under the Article 368, is not unfettered.  

 

Take away the Basic Structure doctrine, the Parliament could conceivably knock down the checks and balances that come through the separation of powers between the three organs of the government. It insulates the Constitution from the perils of using the people’s mandate as unfettered license, and the dangers of short-circuiting the process of legislation that is increasingly seen under the present government.

 

Dhankhar, while inaugurating the 83^rd Conference of Presiding Officers at Jaipur on 11 January, said, ‘we cannot have an ostrich-like stance on judiciary-legislature relations,’ and that the judgement in the Kesavananda Bharati case set a bad precedent by seeking to establish judicial supremacy. And ‘no institution can wield power or authority to neutralise the mandate of the people…primacy and sovereignty of Parliament and legislature is inviolable.’ Earlier he resented the apex court’s verdict by 4-1 majority that held the 99^th Constitution Amendment and the National Judicial Appointments Commission Act 2014 that sought to end the collegium system for appointment of judges of higher judiciary as un- constitutional and exercise control over the appointment of judges. The Speaker of Lok Sabha Om Birla said, ‘the constitutional bodies should refrain from activism and stick to their responsibilities.’

 

The arguments of these high executive and legislative functionaries are flawed. They want the Supreme Court to function within the framework of the constitution. That is precisely what the Court is doing of checking the abuse of executive and legislative power by the government and protecting citizens' rights.  What the Law Minister and the Presiding Officers of Parliament saying, in other words, is that no matter what the Executive and Legislative actions are, the Judiciary should not interfere in their functioning. It is obvious they want to curb the independence of judiciary by doing away with the collegium system of appointing judges of Supreme Court and High Courts. The shortcomings in the collegium system, if any, can be addressed. But political interference in the judicial appointments would undermine the independence of judiciary. 

The government doesn't want the judiciary to pass judgments striking down the executive and legislative actions.  It conveniently ignores the fact that if only the executive and legislative actions are transparent and conform to the constitutional framework, there is no need for the judiciary to intervene in the working of the government. And if the legislations are passed in a binary impartial non-partisan manner, after scrutiny by the parliament standing committees, following the due process of discussion and debate, the scope for challenging them subsequently is substantially minimised.

And the government accuses the collegium of lacking in transparency, forgetting the fact that itself promotes opaqueness in its own working.  High constitutional functionaries and top bureaucrats are routinely appointed, the only criterion in their selection being loyalty to the party and its leader rather than to the ethical and constitutional norms. The Chairman and the Speaker of Rajya Sabha and Lok Sabha have been unaccommodative  to dissenting voices of the opposition. They conduct themselves like henchmen of the ruling party, surrendering the autonomy the constitution confers upon them. Transparency is just a ruse.

 

The separation of powers among the three organs of the government doesn’t mean the Executive would use its brute majority in Parliament to bulldoze the process of law, rules and procedures and pass legislations, having the far-reaching national consequences, and without any discussion and debate. The manner in which the legislations are passed these days makes a mockery of Parliamentary democracy. The Presiding Officers, who are now questioning the role of Judiciary, have been mute spectators when the treasury benches bulldozed the established parliamentary conventions and practices in the recent past and got their way by getting many a crucial Bills passed overnight without discussion and debate.  

 

The Constitution provides for independence of Judiciary as the Judiciary is the Custodian of the Constitution. The Higher Judiciary has the power of Judicial Review, that is the power to interpret not only the laws passed by Parliament and State Legislatures but also examine the legality and permissibility of the Executive actions and declare them ultra vires of the Constitution, if they violate the Fundamental Rights of citizens or provisions of the constitution or the due process of legislation and the rule of law.  The independence of judiciary helped save the Constitution from being undermined through the misuse of parliamentary majority.

 

The Executive agencies like the CBI, ED, IT, NIA etc. are misused to suppress dissent and criticism. The investigating agencies have been arbitrarily arresting and imprisoning people by invoking the draconian laws like UAPA, NSA and certain Sections of the IPC arbitrarily, denying bail, resulting in innocent people spending years in jail without trial. If the higher judiciary doesn’t intervene or entertain PILs and bail applications, then there is no remedy against the abuse of power by the Executive authorities to protect life and liberty of people. And without independent Judiciary, the unbridled power of the Executive and the Legislature would go unchecked, endangering the freedom and democracy. Judiciary is the ultimate hope for justice. If the Judiciary also toes the line of the establishment, it is the end of justice system. The Parliament is sovereign in that it makes the Executive accountable to people whose collective will it represents.