- By Vishal Sharma
- Edited By Zuzer Ashraf
Is the world’s largest democracy, and second most populous nation, loosing it’s democratic grip?
If the constitution of India ever fails it seem likely that it will be due to the tussle between the elected majority and the self appointed minority.
The principles of ‘Separation of power’ need to be checked and balanced in order to provide a functional independence to the executive, legislative and judicial procedures. Power separation is an international standard format aimed at blocking the government from acting arbitrarily against it’s people.
To ensure judicial independence methods of appointing and removing Judges are both very important. The Indian Constitution provides a framework in which appointments are made by the executive whilst removals are controlled by the legislative. This framework ensured that neither the law makers nor the executives could control the judiciary entirely by themselves.
The tenure of Indira Gandhi is often cited as a good example of how the executive may still manipulate the system on take greater control over the judiciary. Many of Indira Gandhi’s supporters were appointed as judges in the Supreme Court and High Courts, but rather than the legislators now being able to remove those inappropriately appointed, those who expressed counterflowing ideology were ruthlessly replaced. It was seen that a possible reason from aspiring judges such as Khanna, their lack of appointment was linked to dissent against Gandhy during the 1975 -1977 national emergency. What followed was the bizarre situation of judges appointing judges, completely cutting the executive out of the loop. Callegium became a conspicuous group of five, working without any bureaucratic assistance, deciding the appointments on the basis of a secretive criteria. To this day no minutes or records publicly exist regarding these meetings.
The rational used to deem the executive appointments as inefficient and thus justify the power grab were the “delays in judicial appointments”, the worrying fact is these delays remain, with many unfilled vacancies across India’s High Courts.
The since ratified 99th amendment to the constitution, 13th April 2015, provided for a National Judicial Appointments Commission, however on the 16th October 2015, the Supreme Court declared the NJAC unconstitutional and against the constitution’s basic structure, by a vote of 4:1, effectively striking down the 99th amendment. However the Supreme Court also insisted in a constitutional check on the validity of the Collegium system as well, the system of judges appointing judges.
The NJAC was aimed at having the structure of three top judges, a newly created law minister and two eminent lay persons, something akin to British Magistrates. Prima Facie this was a reasonable amendment, but in so many so called democracies around the world today, power and authority is not a matter of due appointment, but who can take it and not let go.
Only one of the Supreme judges voted in favour of the 99th amendment, Jasti Chelameswar, delivering a dissenting judgement holding that by totally ousting the role of the executive from judicial appointments is against the basic principles of parliamentary democracy where power is in the hands of the elected representatives of the people and not in the hands of self-appointed institutions. Chelameswar upheld the amendment and gave a damning condemnation of the current Collegium system.
However the very supreme ruing against the 99th amendment itself has come under mass public fire for acting against Nemo Judex in Cause Sua, no man shall judge his own case. Out of the five judge bench, one, J.S.Khehar was actually part of the present Collegium, thus partaking in the judgement of a case in which he had heavily vested interests.
Notes from the editor
The main problem with many of the world’s democracies including the Indian system is that, although democracy is a Greek invention, they base their systems on the English system due to Britain’s previously forced occupation.
Whilst England’s Dicey’s Rule of Law is, on the face of things, a sound system, the government and law enforcement leave citizens to live freely in peace, unless unequivocally proven guilty of a predefined and written law in a professional court of law.
The problem is that England does not and never has actually ruled by this rule of law. England is one of only 5 countries in the entire world not to have a constitution. England has no written law. Laws and punishments are bastardised, manipulated and generally abused by under qualified and unelected judges, whose judgements, punishments and rulings vary drastically from town to town, day to day and indeed depend heavily on what mood he is in on the day.
Coupled with Britain’s appalling track record for illegal warfare, racial, emotional and physical abuse of ethnic minorities at the hands of the police, corruption within the legal and judicial systems and totalitarian police estate rule; it is arguably one of the worst systems you could base your legal system on.
India has a problem with it’s unelected Collegium system that is worryingly too close to the British system, India needs to carve out it’s own legal system’s identity, one which represents the voices of it’s some 1.3 billion inhabitants, not just the 5 individuals at the top.
V.Sharma ID: FJ395