Indian Constitution was framed with a purpose of guiding the legislature on how to Govern this country under certain principles. During the years of Congress rule especially under Mrs India Gandhi, constitution was toyed around with amendments many of them changing the basic structure of the constitution.
Today Indian Constitution does not place “Equality” as the cardinal principle. There is the concept of “Privileges” for one reason or the other, some times in the guise of correcting the long time discrimination, real or imaginary. Many of these privileges outlived their necessity and became the tools of “Voter appeasement”. Even the basic of the basic structure was changed with the introduction of the “Secular” concept which was not in the Constitution earlier.
The reservations and religious appeasements were born out of this disrespect to the cardinal principles of our constitution.
After the famous Kesavananda Bharti case, a principle was introduced that the Parliament can make any amendment but not change the basic structure of the constitution. But the interpretation of whether some thing affects the basic structure or not remained with the Supreme Court. In other words, the wisdom of the constitutional bench of the Supreme Court was more powerful than the Constitution.
For some time people thought that Indian democracy had legislature as one part and Judiciary as another part. The Executive and Press were considered other pillars of democracy.
However, at present, Supreme Court has become the ultimate interpreter of the constitution and even of 75% of the elected parliamentarians decide on a change, the Supreme Court can shoot it down. The elected representatives themselves can get into the legislature because they would have a consolidated voter base of one religion or caste.
The Press has long abdicated its role as a pillar of democracy. Executive is more comfortable with a corrupt political system since they can wield reflected power and enrich themselves.
Indian Democracy today runs on just one pillar and that is Supreme Court. The cabinet, the Ministries or the Loksabha or the Rajyasabha are only subordinate institutions who can propose but it is only the Supreme Court which disposes. This is not a healthy situation for any democracy as it upsets the delicate balance that needs to be maintained.
Quite often we feel that Supreme Court itself is over reaching itself with the executive decisions and has been swayed by political and financial corruption.
A time has therefore come to review the way Supreme Court interacts with the Executive and the Legislature.
Advocate Mathew Nedumpara has been the only person in the country who has the courage and the conviction as well as the expertise to question the Judiciary and make them think in the right direction.
Though the Judiciary has treated him with disdain, he has gone about his duty to the nation with undiminished commitment.
Presently the National Lawyer’s Campaign for Judicial transparency and Reforms, which is led by him has filed a petition at the High Court of Bombay questioning several practices that the Courts have adopted in the yester years particularly with respect to the selection of Judges.
(Copy of the draft petition is available here)
Today there is a petition with the Supreme Court questioning the constitution of the Election Commission. There are State Governments where Chief Ministers do a Dharna in front of the Governor’s office or CBI. The law and order has been broken by people holding the office of the Chief Minister despite having been defeated in the elections. But all this seems to be within the constitution of India.
“We the People” cannot understand how a State CM who is challenging the Union Government’s law enforcement authority or the main opposition which is instigating international conspiracy to defame India, cannot be booked for anti national activities.
The Constitution that does not prevent an irrational anti national activity of a political party is not a robust constitution. The PILs that question every executive action and the alacrity with which the Supreme Court jumps in to admit any petition against the Government weaken the constitution further.
It may be observed that during the Privacy Judgement, Justice Chelmeshwar made a statement to the following effect as part of his judgement.
“To sanctify an argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be too primitive an understanding of the Constitution and contrary to settled cannons of constitutional interpretation.”
What this meant was that the Supreme Court had the powers not only to interpret what is written in the constitution but also imply what is not found in the text of the constitution.
With this view he justified the right of the Supreme Court to re-write the constitution and interpret it in any manner it prefers.
I wish that the current petition of Mr Nedumpara’s team would make the Supreme Court impose some restrictions on itself . Otherwise there will be no difference between a dictator politician and a dictator Supreme Court.
Supreme Court has the powers of Contempt but even this is exercised with an interpretation full of hypocrisy. An advocate who tears of an evidentiary document in the Court or shouts “Shame” when a judgement is pronounced is not booked for contempt, but a person who files a PIL which the Judge does not like gets fined. There is no consistency in the judicial pronouncements and public are aware of such inefficiencies in the system
The demand for open broadcast of the court proceedings have been resisted for too long a time because parts of the Judiciary were not confident of making themselves available for public scrutiny despite the powers of the Contempt being available to him.
If the current CJI breaks this self protective measure of the Court, it will bring a revolutionary change to the quality of our Judicial systems.
If at the same time, Mumbai High Court and there after the Supreme Court also ensures that Executive and Legislature can function with reasonable freedom, then democracy in India will be on the right tracks.
Naavi
