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Wednesday, January 27, 2021

Shouldnt Judiciary be accountable and answerable to the public ?

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Latest developments in the so called farmers protests with reference to judiciary raises many concerns:

  1. It was farmers bodies who approached SC to stop farm bills. The petition was not even to seek an opinion on the constitutional validity of those three farm bills. This is the first bone of contention. How can SC step in the rights and role of legislature and stop a law that is passed by the legislature? SC can only check whether the said law in toto or in parts, has or lacks constitutional validity and in case the said law or any part of the same lacks constitutional validity, then to that extent the law cannot be enacted.
  2. When SC ordered constitution of the committee to discuss this issue, same farmers have rejected the order to sit down and talk with the SC appointed committee. What does this mean? Do farmers want a legal and constitutional resolution of the issue or want to act dictatorial and autocratic and behave with a my way or highway attitude? If that is the case, whats the sanctity and locus standi of SC and its order? Doesnt this tantamout to Contempt of Court? What will SC do now? Sit still and fiddle its thumb or impose a Re 1 penalty or enforce its writ?
  3. This raises a bigger concern of maintaining the balance of power between three arms of government and also the sanctity of constitution and democracy. Is it the right of the judiciary to interfere in the areas of legislature and that too by staying enforcement of laws passed by the legislature and that too without citing any clause/(s), section/(s), provision(s) in the said laws that lack constitutional validity? Can judiciary encroach into the domain of legislature and run judicial activism? If that is the case what is the need to have a duly elected parliament and a multi party democracy, if 31 wise men who are not even elected by the people and dont represent the masses can interfere into the working of democracy?
    Here I remember an anecdote from Maharashtra. In August 2016, Sharad Pawar had stated that judiciary is controlled by 40 dynasties, and judges come from that extended family and juniors in the chambers of these 40 dynasties. When Former Judge B.G Kolse Patil pointed out to Sharad Pawar that there are dynasties in politics, Pawar replied that we can be removed after 5 years, but how can you be removed? This reply by Pawar to Justice Kolse Patil led to a round of laughter in the auditorium.
    If honourable judges wish to encroach into the powers and authority of the legislature, it would be ideal that they present themselves to the public for election and get the right to represent them and then overturn or enforce any laws, and be accountable, responsible, and answerable for their decisions, instead of using an opaque collegium system to appoint themselves in which they arent even answerable to the people of this country for their decisions.
  4. Did judiciary buckle down to the protestors under pressure of possibility of violence? If no, why did judiciary intervene into the realm of legislature and stay the laws without giving reasons justifying that the said laws lacked constitutional validity? Does this mean that judiciary can be influenced by and judicial decision can be extracted under pressure of mobocracy? If mobocracy can do this, what is the need for constitution, rule of law, democractic and constitutional processes, parliament, etc in this democracy? Let mobs rule and prevail. Judiciary who could easily take decisions on height of dahi handi to ban on crackers without having to worry about lashback from the masses, bowed down to threat of mobocracy! Does this set a precedent, wherein various interest groups can gather a few lakh people in front of SC and get a desired order? This doesnt augur well for the democracy, constitution, parliament, and ofcourse the judiciary.
  5. Is it within the power of the judiciary to appoint a committee to handle negotiations with the mobs, and thereby undermining the authority and primacy of the legislature and administration? If at all anybody has the right to conduct discussions and negotiations on a bill that was first passed by the standing committee and then the parliament, with involvement of opposition in the same, then it is the government. How can judiciary usurp the rights and duties of the government – administration and legislature?
    This is a sad moment in the history of India where judiciary has not just invited scrutiny over its action but has also undermined its authority by allowing farmer bodies to reject its order and continue holding the state hostage. Its time for the nation to really deliberate on the role and powers of the judiciary and whether judiciary must be allowed to encroach into and usurp powers of other bodies and how can judiciary be make accountable and answerable to the public at large for its decisions and actions.

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