Monday, October 19, 2015
The Supreme Court of India and the Judgement on NJAC
A look at the world of politics, statecraft, diplomacy and books The Indian Constitution envisaged a Parliamentary Democracy in India and over the years, thanks largely to the unmitigated abuse of power and corruption of successive Central Governments, particularly the Congress Party and its Allies, the political system as it presently states is viewed with suspicion by the rest of the country. The decline in the legitimacy of the political institutions has led to un elected elements like the CAG, the EC and quasi autonomous bodies to relegated a degree of freedom to themselves which was not envisaged on desirable in a democratic country. The Judiciary has always been a law unto itself as it does not subject itself to any scrutiny and of late, THE CREDIBILITY OF EVEN THE SUPERIOR judiciary has been called into question. A few years back there was a raging controversy over a Chief Justice, and the matter about his involvement in certain judgments still lingers on. The Constitution states quite clearly that the Executive which is accountable to Parliament must have a major say in the appointment of justices. It was Indira Gandhi's fascist talk of "committed judiciary" that alarmed the Judiciary and as the Central Government became weak under an assortment of non Congress Government. the Collegium System evolved which essentially meant that judges appointed judges. It is this imbalance of giving primacy to the Judiciary in matters relating to appointments that sought to be rectified in the National Judicial Appointments Commission which envisages a role for both the Prime Minister and the Leader of the Opposition in the selection of the Judges. In every democratic country the Executive and the Legislature appoint the higher judiciary. In USA the President nominates and the Senate confirms. Even the USA does not have a Judiciary which perpetuates itself by appointing itself and arrogating to itself the right of appointing judges in the name of Independence of the Judiciary. The concept of Indepemdent Judiciary does not embrace the notion of an unaccountable judiciary which is the situation under the Collegium sysytem. The basic flaws under the judicial collegium system was rectified by the present law which was passed by the Parliament unanimously. The Lok Sabha for all the flaws in our existing Parliamentary system is the representative of the Sovereignty of India and the Supreme Court cannot and should not undermine that. It is likely that some amendment will be made and the role of the Executive in the appointment of Justices will be restored. By striking down the Constitutional Amendment, the Supreme Court has undone the basic structure of the Consitution which makes the Parliament the source of law and the fountainhead of political will.