Monday, May 16, 2016

Executive's assault on Judiciary .... Power & Politics / The Sunday Standard / May 15, 2016

Executive's assault on judiciary will only kill the essential spirit of the constitution

It is the destiny of men to pass into the great beyond one day. But the institutions created by mankind are meant to survive to promote and protect the system. Though their arbitrary misuse of power causes critical confrontations. The Indian Constitution—the world’s longest—strongly emphasises the division of power between the executive, judiciary and legislature. The wise men and women who wrote it anticipated a conflict between politicians and judges. They, however, hardly foresaw the depth of animosity that could rise between the two pillars of democracy.

The oppugnancy between the executive and judiciary is not new. But today, it has escalated into a turf war rather than a civilised disagreement in the spirit of the Constitution. Rattled by the rising number of judicial verdicts against various actions of the executive and legislature, politicians across the spectrum have unsheathed their swords against the judiciary. Legislatures, including Parliament, have been turned into platforms to launch diatribes against the judiciary.

During the last session of Parliament, the judiciary was targeted sans serious provocation. None other than Finance Minister Arun Jaitley led the attack. The House was discussing financial issues, but he chose the occasion to hit out at the judiciary, accusing it of destroying “step by step, brick by brick, the edifice of India’s legislature”.

Jaitley was echoing the views of not only PM Narendra Modi, but also of former PMs like Manmohan Singh, as well as a number of powerful leaders across parties. Last year, Modi lamented the rising tendency of judicial activism. Addressing a conference of Chief Justices and CMs, he had said, “It is never too difficult to deliver justice within the boundaries of the law and Constitution. But it is very difficult to find the truth between perception and reality. It must be pondered over whether five-star activists are driving the judiciary today… if havoc is created to drive the judiciary. It has become difficult to deliver justice in an atmosphere of perception”. He also criticised the long vacations enjoyed by high court and Supreme Court judges, especially the month-long summer break in the apex court. His predecessor had expressed his annoyance with the judiciary by warning, “The judicial family must consider the ills that face the judicial system with concern and find quick solutions for it. Any further delay in finding such solutions will only jeopardise the integrity and efficacy of judicial institutions”.

India is not alone where the political leadership is concerned about what it perceives as judicial encroachment. In the 1800s, America’s Founding Father and president, who was the principal author of the Declaration of Independence, Thomas Jefferson had noted, “Judicial activism makes a thing of wax in the hands of judiciary which it can give the shape as it wishes.”Apart from politicos, the judiciary is also under attack from agenda-driven civil society. There are numerous examples of activists attacking judicial pronouncements, which went against their ideological convictions.

If political leaders have been acerbic in their criticism, judges have not kept schtum either. In April, Chief Justice T S Thakur, while sharing a platform with the PM, made it clear that his fraternity cannot be blamed for the executive’s mistakes. Speaking in a voice trembling with emotion, he clarified, “It is not only in the name of a litigant or people languishing in jails but also in the name of development of the country, that I beseech you to rise to the occasion and realise that it is not enough to criticise. You cannot shift the entire burden on the judiciary.” He responded on judicial vacations by saying, “Do you think we go to Manali or some other hill stations to enjoy ourselves? If he (the PM) thinks we have long vacations, he is entitled to hold on to his views. But only a judge, his wife and children can tell you how much judges enjoy in the vacations.”

Behind the verbal duel between the judiciary and executive lies the reality of various arms of the latter abandoning their basic duty of providing responsive and clean governance. During the past two decades, the courts have rapped the executive’s knuckles on various issues by:

• Quashing the National Judicial Accountability Act, which would have given decisive role to executive in the selection of judges
• Striking down caste and religious reservations by various states
• Barring politicians from contesting polls after conviction and vacating seats
• Taking serious view of scams and ordering court-monitored probe
• Preventing state governments from playing with environment
• Striking down imposition of Article 356 in Uttarakhand
• Giving freedom to investigative agencies to probe politicians and civil servants without seeking approval of any authority
• Cleansing the corruption-ridden BCCI, which is largely dominated by political leaders.
It is not the judiciary, which is becoming more involved in the administration of the state, but the rising number of citizens who are approaching various courts for the redressal of their grievances after they failed to get justice from government departments. The state is the largest litigant in India. According to legal luminaries, the judiciary has stepped in whenever the executive has failed. But politicians assert that unelected persons cannot be given the power to reverse decisions taken by an elected government in the public interest.

A prominent jurist fired a robust rebuttal, maintaining that the Constitution was written on behalf of the people while it is only one-third of the voters, which elect a government. Fortunately, the judiciary enjoys far more credibility than the executive. Any attempt to damage its reputation through insulations and legislations will only kill the essential spirit of the Constitution. At a time when the nation is witnessing the growth of confrontationist politics, any attempt to weaken the judiciary will strike at the roots of Indian democracy and its Constitution.; Follow me on Twitter @PrabhuChawla

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