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constitution in danger

constitution in danger


during the recent election campaign, there were shrill cries from the opposition leaders that modi, if returned to power. will throw out the constitution, do away with reservations, convert citizens other than hindus as second class citizen. comparison to hitler's rise to power was cited. the poor will suffer; the unemployed will suffer. in short, if modi wins, it would be the last election in india since constitution would be done away with.


 whether scared by such propaganda, or otherwise, modi did not get the majority which he desired. in fact his party did not get majority on its own. it has to go with the allies.


suddenly all talk about danger to constitution is gone.


but, in my view, the constitution is now in danger, gravest danger.


and the danger comes from judiciary.


a renowned retired judge of supreme court has written, "it is history that when the government was weak , the supreme court extended its powers". a coalition government, not sure of its standing, cannot react to such encroachment on the executive and legislative powers of the government. it has to keep quiet and acquiesce to such encroachment. during the prime minister ship of nehru and indira, the supreme court kept strictly within the powers given to it by the constitution. there was no overreaching or activism. the governance was left to the parliament and the executive. not that the arbitrary action of the government and its officers was not challenged and such challenges dealt with  by the court. but all this was within the powers granted to it. the independence of judiciary was provided for and strictly adhered to. there was no friction. some tension between executive and judiciary is inevitable and even good because their jurisdictions are not watertight. while parliament has the unfettered right to pass laws, the courts have the right to check if these laws are in tune with the constitution. this creative tension keeps both the executive and the judiciary on guard - and mutually accountable. but if this tension degenerates into open war and ego tussles, it can be ruinous for the country and governance. this is what both government and judiciary must seek to avoid.


one thing needs to be stated upfront. the confrontation was anyway building up for some time due to three other factors: the steady encroachment on legislative space by the judiciary (2g judgment on auctions, mining bans, setting up of sit on black money, etc), the subversion of the original constitutional mandate on judicial appointments by the supreme court during an era of weak governments, and rising public concerns about corruption in the judiciary.


in 1970, the 13 bench judgment of supreme court stated " the expression "amendment" of this constitution in article 368 means any addition or change in any of the provisions of the constitution within the broad contours of the preamble and the constitution to carry out the objectives in the preamble and the directive principles. applied to fundamental rights, it would be that while fundamental rights cannot be abrogated, reasonable abridgement of fundamental rights could be affected in the public interest. the true position is that every provision of the constitution can be amended provided the basic foundation and structure of the constitution remains the same.


while the tenor of judgment was correct, once the government became weak, the last sentence was misused to interfere with each and every amendment. the latest was when the opaque collegium system  (where the judges choose their successors without any responsibility to show why they chose any one) was sought to be changed by the parliament, it was ruled out by the supreme court as being injurious to basic structure.


there was no need to explain. it was just their view. the real reason was to be impervious to all criticism where they have to justify their selection. it is well known that nepotism, quid pro quo is prevalent in selection. many of the supreme court judges have, themselves, admitted it but they were helpless because the system is closed and no outside views can enter unless approved by those who are first responsible for the decision in the first instance. the contempt of court act, applied arbitrarily, prevents any criticism, however valid, against the rampant corruption in judiciary at all levels and every other arbitrary action or decision.


in this context it is pertinent to point out views of one of the judges. justice jasti chelameswar, who was the sole dissenting voice in the njac case. he notes in the foreword to a book: “various societies in the modern world adopted different models of selection processes for the appointment of judges. india choose a model when it became a republic. but the model is largely based on past colonial practice. with changing times and changing economic and political factors, the need to revisit the model was felt from time to time, both by successive governments and civil society. the latest experiment was the constitution (99th amendment) act, 2014, which was struck down by the supreme court …”


the opposition, in india, is bigoted, has a narrow mind, though not anti-nationalist, but not nationalist either. they think of getting power for its own sake and for the sake of its supporters (or what is called vote bank). they would welcome any decision where the government of the day has to eat a humble pie. the supreme court knows this and welcomes it because it enables them to ride roughshod over any government decision they do not like.


a list of arbitrary decisions would be too long to be accommodated in one article. some instances may be noted.


1.      a new method of litigation is not only allowed but encouraged. this is called public interest litigation. anyone, anywhere, any how, can just stand up and say that he is standing for public interest. he files a petition under public interest litigation. it is good publicity. the newspapers lap it up. the media goes ga ga over it. time and again, some petitions are dismissed on the ground that it is a public stunt but the person concerned has got what he sought -  publicity. there are no costs involved. if only there was a fees (say rupees five lakhs) to be forfeited if the petition is dismissed or withdrawn, the number will drastically come down.

2.      even if no one is willing to file a public interest litigation on an issue, it does not prevent the court from taking suo moto cognizance of any matter. the reasons given are always noble – environment, right of liberty, freedom of expression and so on. but the action is always beyond its jurisdiction and lies, more often than not, with the executive. it is usurpation of powers not allotted to it in the constitution and, thus, violation of constitution.

3.      some petitions are not so innocent. they are for personal gain. thus a lawyer petitioned that the experience of judges should be more fully used. the supreme court, in its judgement accepted the plea and arbitrarily increased the age of retired judges at district level by two years. (but why two years. does the experience get enhanced in these two years or gets exhausted). in fact there was a feeling that his petition was sponsored with a promise of favourable consideration. same consideration was denied to all india services who also claimed long years of experience.

4.      the appointment of an officer in a  quasi-judicial commission was turned down on the plea that the decision making requires judicial mind and only retired high court and supreme courts judges have a judicial mind. what is judicial mind was never defined and cannot be defined. (please see my article  - weighing machines and judiciary)

5.      administrative courts were established by law. retired high court or supreme court judges were to be appointed as members. but there were members from the administration side also. the rule was that a judicial member should always be there in the division bench which takes up the case. these judges were retired from superior courts. it was provided that appeal from them would lie to supreme court. whether the appeals were too many or for some other reason, it was arbitrarily decided that appeals would lie to high courts and not supreme court, a decision directly against the provision of law and there was not even a direction to government to amend the law. . a shortcut, provided to expedite the decision making was cut short to avoid inconvenience to the supreme court.

6.      the high court judge reads in the newspapers that number of dengue cases is rising in delhi. he goes to the court and first thing he does is to summon the health secretary of india and chief secretary of delhi to appear before him and explain what they are doing about it. obviously this is an administrative work and nothing to do with any violation of law or other illegal activity (not that they have right to summon officers in even such cases) but the idea is to harass and humiliate the officers. once summoned they are made to wait while the judge is busy in some important ( important, my foot) work. the reason may be pure jealousy. the officers, in their discharge of duties have certain powers and a budget also which can be used at their discretion (especially at district and divisional level) while the judge has no such facilities. the heartburn results in trying to belittle the administrative officers and enhance the ego. the practice of summoning officers at the drop of the hat became so rampant that even the supreme court was shamed into issuing advisory not to unnecessarily call officers and make them wait. of course, no question of allotting black marks for such obvious misuse of their authority. after all, it is all within the biradari.


as pointed out above, instances can be multiplied manifold but the main point is that now that  we will have a government where more than one party share the power, there is scope of so called judicial over activism, which is another name for interference in day to day administration. with the opposition calling for supreme court investigation for every event like leak of an examination paper, lynching of a person or raid on a politically active person, they will have ample opportunity to indulge in such practices, even though this court sponsored enquiry is against the basic principle of independence of judiciary from the investigating agencies (which  was the case when district magistrates were overall in charge of law and order, much to the discomfiture of so called freedom fighters).


all in all, a struggle is foreseen and encroachment on the provisions of the constitution may become commonplace. they will not call it destruction of constitution but give it some highly complementary adjective, but the net result would be same.


let us be vigilant.


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