One of the most important measures in this regard is the Judicial Review. The constitution of India has guaranteed to its citizens, the right to approach Supreme court, under Article 32 and to High courts under Article 226, to enforce the fundamental rights and also for remedies in case of any violation.
Hence, whenever a law gets amended or a new bill is passed from the parliament, the last say in this regard is of the Judiciary. With these responsibilities and powers, Indian judiciary is one of the three important pillars of democracy in India. However, when four judges of the Supreme court of India say that, “all not okay, democracy of the nation is at stake”, it means something is seriously wrong.
In an era when justice is being betrayed and people of the India are afraid of severe happenings as indicated by a report of ‘IndiaSpend’ wherein it has been confirmed that at least ‘24 persons have been killed in 2018 in Mob attacks’, the protection of Judiciary is a must.
It seems that some parallel force is working to disrupt the smooth functioning of the country thereby creating chaos. This becomes evident when the Indian army is being compared with RSS workers, by its chief Mohan Bhagwat when he said that “while the Army would take 'six months' to raise a force to fight a war, the RSS could do the same in a matter of three days”. India is passing through a tumultuous phase, wherein on the one hand people are being divided in the name of caste, race and religion just for the vote bank and on the other hand democratic nature of the State is at stake, as claimed by justice Chelameswar and the other three judges in the unprecedented press conference. Sadly the Institutions like CBI, RBI and even judiciary are not immune from interference of Current government. It is trying to overrule all Constitutional institutions so that they can rule this country according to their whims and fancies as happened in Rakesh Asthana’s case in which government interfered at mid night of 23rd October and sent accused Rakesh and CBI director Alok Verma on indefinite leave and transferred Alok’s team from aforementioned case.
Under such a situation the role of the judicial institutions becomes more vital to check the piracy of the democratic ethos of the country, but without violating "separation of power" principle.
The tussle between legislature and judiciary is not a new one in India; it has rather a history of it. The very first argument between the two came to the fore within a few months after constitution’s coming into force. In this regard the very first important case is Shankari Prasad V. Union of India (1951, SC 455). In this case the debate moved around the contradiction in the interpretation of article 13 and article 368 of the Indian Constitution and Supreme Court ruled out that the power to amend the Constitution under Article 368 also includes the power to amend fundamental rights and that the word “law” in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges any of the fundamental rights. So in this case Supreme Court concluded that legislature is supreme.
Again question arose in Sajjan Singh V. State of Rajasthan 1965 AIR 845, 1965 SCR 933), and again Parliament was declared supreme but in the landmark case of Golak Nath V. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762) it was held that Parliament has limited power and it cannot amend any of the fundamental rights. This tussle continued and different parts of Constitution were amended and were struck down by Judiciary.
The issue was tried to be resolved in 1973, by an unprecedented thirteen Judge Bench in Kesavananda Bharati v. State of Kerala case (1973 ,4 SCC 225) in which it was held that although Parliament can amend any part of the Constitution (including Fundamental Rights) but its basic structure can’t be amended.
The recent granting of 10 % reservation by 124th Constitutional Amendment on the economic grounds is a similar example as it has been challenged on the ground of violating the basic structure of the Constitution. Also, in 2014, a bill was passed in parliament for establishment of NJAC(The National Judicial Appointments Commission) to replace the present Collegium system of appointing judges but Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
It was aptly said by William Ewart that the “Justice delayed is Justice denied” and it may astonish one, that more than 3 crore cases are pending in Indian courts. Despite approval from the Collegium consisting of Chief Justice of India and four other senior judges the government haven’t cleared the appointments of judges of different High Courts and it also interfered in judiciary by rejecting 43 names suggested by Collegium in 2016 and ironically with the unclear reason.
In each of the known cases where the government stalled the recommendation of the top court collegium, the people involved had done something perceived as against the government be it the case of the recommendation of senior counsel Gopal Subramanium as a top court judge or elevation of Justice K.M. Joseph to the Supreme Court.
This can’t be just a coincidence that all important cases regarding government were being distributed selectively among judges as claimed by Justices J Chelameswar, Ranjan Gogoi, Kurian Joseph and MB Lokur in January 2018 and this also can’t be a coincidence when Council of Ministers objected the decisions of Supreme Court by uttering non-factual statements against observations of apex court as happened in Sabrimala Case when Amit Shah criticised by saying “courts should given orders which can be implemented and it should not give orders which breaks faith of the people”. The present government has left no stone unturned in the way of the deterioration of this institution as they find this a hurdle in the way of the achievement of their vested interests and mobilization of their voters whom they have promised before the Lok Sabha elections in 2014.
Fulfilling demands shouldn’t be a problem until it violates the law of the land. For instance the current government wants to build Ram Temple in Ayodhya so that they can strengthen their vote bank for upcoming Lok Sabha election in 2019. Same is the case of 'abrogation' of Article 35a, while the cases are sub-judice in the Supreme Court of India.
The separation of powers is sound and clear enough for all the three institutions viz Legislature, Executive and Judiciary and they are supposed to work accordingly. Once they interfere in each other's work they are no more democratic and when any government will succeed to hijack, especially judiciary that would be categorically biggest injustice to the country leading to the hegemony and dictatorship.
Disclaimer: The views expressed by the author are his personal and do not necessarily represent Pir Panjal Post's editorial stance.
About the Author: Sajid Bukhari is a Law Student at Aligarh Muslim University. He can be reached at: firstname.lastname@example.org