Under the Westminster System of State (which is the model followed in India), there are three pillars of a democracy: the Legislature, the Executive and the Judiciary. Each has its own role to play to maintain order in the state. Moreover, the three have defined roles for each of them, so as to act as independent entities and ensure checks and balances for each other. However, over time, the Judiciary has managed to accord itself enough power that essentially allows it to act like the Legislature and the Executive itself.
Let us see how judges for higher judiciary positions are appointed in India. According to Articles 124 and 217, judges are selected by the President of India in “consultation” with the Chief Justice of India and other judges. However, through the Three Judges Cases (1981, 1993 and 1998), the Supreme Court has decreed that “consultation” is to be interpreted as “concurrence” and created the “collegium”, a body of 5 judges of the Supreme Court which decides who will be appointed as a judge in the Supreme Court and the high courts. Essentially, in the name of separation of power, the Supreme Court has managed to create a system through which it can decide who gets to become a judge in an opaque manner. This may create space for issues like nepotism and overlooking genuine talent. Ironically, the Supreme Court, which is at the forefront of propagating social justice, appointed its first judge from the Scheduled Caste community in 2019, after a gap of a decade. The role of the government is simply to conduct a background check for the prospective judges that the collegium nominates.
To tackle this issue and to bring more transparency into judicial appointments, the Government of India brought constitutional amendments in 2014 to create the “National Judicial Appointments Commission”. However, this was struck down by the Supreme court in the name of safeguarding its independence. The collegium system has also been criticised by some Supreme Court judges such as Justice Ruma Pal and Justice Chelameswar.
Now, let's shift our focus to another term that the judiciary managed to conjure out of thin air, the ‘basic structure’ of the constitution. In the Kesavananda Bharati case (1973), this term was used for the first time and was left undefined. The idea behind ‘basic structure’ is that even though the Legislature has the power to amend the constitution, some principles are just too essential for the ‘idea of India’ that makes them immutable. Using this doctrine, the Supreme Court can have the discretion of striking down any amendment that they think are ‘problematic’, even though the people of this country may already have given the mandate to the government to do the same. The whole reason the Constituent Assembly had decided to adopt a flexible constitution was that they acknowledged that the future generation’s will and the then conditions could be different from their times.
Even more shocking is the rate with which the judiciary disposes of cases in the country. In April 2021, it was reported that more than 4 crore cases remain pending. This is when the judiciary has time and again chided the Legislature and the Executive for not doing their job. While the condition remains grim, where people have to wait for years and spend a lot of money on lawyers, the judiciary finds enough time to decide how high should the dahi handi be tied. Not to forget that for normal people, the judiciary does not entertain cases during summer or winter vacations, and meanwhile some can manage to get the Judiciary to hear them in the middle of the night. As is said, justice delayed is justice denied.
Also how the judiciary has been giving absurd decrees is more pronounced in the current pandemic. From suggesting that SCs and STs are not getting access to vaccines, that oxygen should be carried in CNG cylinders, that dexamethasone is better than remdesivir, taking suo moto cognizance that conducting elections in West Bengal amounts to Election Commission being ‘murderous’, taking a u-turn and forcing the UP government to conduct panchayat elections, to ruling that some alternative drugs work better than Tocilizumab which is currently being prescribed the doctors.
The current system has allowed a body that remains unanswerable to acquire a lot of power. Sure, the government and the Lok Sabha have time and again failed to do their jobs. However, this does not give the judiciary the right to rule the country. The judges can judge us, but who will judge the judges?
I believe it is important to bring about necessary reforms in the present system. Fundamental rights need to be amended succinctly in order to avoid multiple interpretations and transparency should be brought in judicial appointments. I hope ‘milords’ will recognize my right to free speech and not book me under contempt of court. :p
- By Lakshay Goyal (Batch - 2022)
(The opinions expressed in this article do not necessarily reflect the opinions of the LitSoc team.)