Joke of a Judiciary

We proudly claim India to be a democracy - rule of the people, by the people and for the people. It is but logical to conclude that in such a political set-up, the people's choice is the ultimate binding declaration or covenant. The people's choice is reflected by the legislative (Lok Sabha) and for all practical purposes or day-to-day national operations, the executive (PM, his cabinet and the administration). Theoretically so, the word of the legislative, i.e. law passed by the Parliament, is the final word on the matter. When that law is not upheld, the function of the third estate, i.e. the Judiciary, commences - delivering justice for violation of the law. However, what is to be done when the fence consumes the farm?

13th Apr 2015 was an important date in the history of modern India - the NJAC (National Judicial Appointments Commission) and its Constitutional Amendment Act came into force. In a nutshell, the NJAC would have replaced the collegium system of judicial appointments. In the collegium system, five honourable judges (or Milaards henceforth in this blog) would be in charge of making the appointments of judges in the next lower level court - e.g. for judicial appointments in the HC, a five-judge bench headed by the Chief Justice of the SC along with four senior-most members of the SC would decide on judicial appointments. Once done, the appointment moves on a FYI basis to the executive for notification. The executive can only seek a review once, and if denied, it has to go ahead with the appointment ensuring that the final call on the matter rests with the collegium, i.e. the CJI headed panel. The intriguing aspect of the system is that it is not a part of the constitution but seemingly popped up with The Three Judges Cases verdict. The fundamental flaw in the collegium system is quite glaring - there is zilch accountability when it comes to the judiciary. Irrespective of extent of delivery of key outcomes (such as judgments delivered turnovers, pendency of cases, tenure, affiliation etc etc), the judiciary would never be questioned - with appointments being decided internally, the judiciary has no consequences to bear from its actions - right or wrong! Over the years, this has ensured complete lethargy and a gung-ho attitude in the judiciary; by not being answerable to anyone (let alone the people of India in a DEMOCRACY), the judiciary has run the roost! This fundamental flaw in a critical estate of the country's democracy has directly manifested into a whole host of problems - repeated judicial intervention into the executive & legislative functions, non-disposal of cases for decades on end and denial of timely justice to thousands of citizens - more often than not, the ones who can't afford to spend limitless time & money in pursuit of justice. In fact, the joyous countrywide celebrations on the Telangana police encounter of the arrested individuals in the recent Hyderabad Vet rape & murder case highlights and announces, loudspeaker-like, a simple core fact - the people of India have very little faith in the Indian judiciary. This should have been a moment of deep introspection by the Judiciary but that nowhere seems to be happening.

On this backdrop, the Narendra Modi government's attempt to challenge the status quo and induce sanity & accountability in the judicial set up, i.e. the NJAC, was a bold attempt; bold for it was natural to raise hackles on executive interference in judiciary though apparently, the application other way round is absolutely a non-issue. The NJAC would be a six-member panel comprising of the CJI, two senior SC judges, the Union Law Minster and two eminent persons (nominated by a three-member committee comprising of the PM, CJI and the LoP). Even if for a moment, I stipulate to the judicial concern/accusation that NJAC was indeed an executive infringement on judicial systems, still the math does not hold up. To deny any appointment, NJAC needs to have two dissenting votes; for the sake of argument, let us say that one will always come from the Union Law Minister, where will the second come from? The eminent person appointments are done by a troika of individuals who will seemingly have different perceptions and thus can be assumed to be the most neutral ones (as the CJI effectively gets the deciding vote assuming that the PM & LoP votes cancel each other out due to political motives). Is this not a balanced alternative to the collegium? Even if the second vote indeed now goes against an appointment, isn't there more probability of this disagreement based on neutrality befitting the checks-and-balances mechanism and thereby more superior to an internal, opaque and downright nepotic system, i.e. the collegium? Even if the NJAC had its faults, wasn't it more worthwhile to implement and improve rather than outright reject it as happened barely six months later on 10th Oct 2015 when SC struck down the NJAC as "unconstitutional"? A law passed by the legislative (the supreme organization in a democracy) and approved by the President of India was "unconstitutional" but a collegium system which is not even mentioned in the constitution is upheld as "constitutional" - can there be anything as convoluted and hilarious upon itself? Isn't this where the fence consumes the farm itself?

The trigger to point out all this came yesterday when Allahabad HC ordered removal of hoardings by UP govt featuring anti-CAA arsonist' details. This development once again re-iterates the importance of judicial reforms such as the NJAC. The funny aspect of this order is that it was based on "suo-moto" cognizance taken by the Allahabad HC Milaards - there was neither a FIR filed nor a legal objection raised. The HC's order was based on juvenile virtue signalling off a high horse babbling on fancy english words like privacy or right! Is privacy even relevant for arsonists? A legal argument is valid if those displayed on the posters raise objections, file a case and fight it out and prove their innocence (though difficult given how all of them have been caught by facial recognition softwares). Add to all this that this was a holiday court - Milaards took out the time to work on a holiday, took suo-moto cognizance and then delivered the verdict. Completely disregarding the fact that the UP administration has shown remarkable success in controlling riots/arson (especially in relative comparison with other peer states - Delhi, Kerala, Bengal & Haryana are prime examples), Milaards marched on with the pontification. Not for once must have they stopped to think to not fix something that is not broken; not for once they must have wondered why a novel name-and-shame technique based on perfect psychological understanding delivered the results - where poise trumped over power! Now tomorrow, we might shamelessly see Milaards again questioning states on law & order. This is the same court that gave a failed and two-decade delayed verdict on the Raam Mandir issue (by trifurcating the land without any understanding of the matter and was eventually overruled by the SC). According to a written reply to the parliament, not even a year old, the Law Minister has stated that over 43 lakh cases are pending in the country's HCs with ~8 lakh out of them over a decade old. In this huge mountain of cases, the Allahabad HC has the highest backlog of ~7 lakh cases but the Allahabad HC Milaards are more interested in suo-moto cognizance - can there be anything more tragic! Our Milaards are offering the rapists of the 2012 gang rape case limitless freedom to delay execution, wondering on privacy of individuals caught on camera damaging public property, refuses urgent hearing (on the pretext of time) to a long standing dispute & heartburn for the Hindu-majority community, can pass judgments on the height of Dahi Handi pyramids, dole out lop-sided judgments on Sabarimala without an iota of cultural understanding and/or the law & order fall outs and has the gall to open its doors post midnight for terrorists, still the Milaards claim moral high-ground and consider themselves capable to deliver moral sermons? Is there any organization in this country that is this unaccountable, this disrespectful to the concepts of democracy, this consistent in shamelessness in behaviour and this brazen in public life barring possibly the Indian Anti-National Congress itself? We suffered a lot from 2004-2014 when authority & accountability lay in different hands; can the judiciary have the authority to direct people and the governments they elect on ultra-sensitive matters like law & order, terrorism and religious harmony while not being accountable to the effects of these transgressions?

I re-state a simple non-disputable fact: in a democracy, the people's choice is supreme and all organizations are supposed to work under this governing principle. The legislative is supposed to enact laws for the well-being of the people (economic, cultural and mental) and the executive is responsible to lead the nation on the constitutional principles in a bid to ensure the socio-economic progress of the people. The legislative and the executive are thus answerable, via the mode of elections, to the people; where does the buck stop for the judiciary? To which altar does the judiciary swear allegiance? Who will hold them accountable for gross incompetence and inefficiency as explained earlier in this blog? Should not the people decide their fate too? Since the people directly can't, shouldn't their representative MPs expressing their will through the passage of NJAC be the governing body? I personally feel that this sticking point needs timely addressing; we are already late but can we still salvage? Can we re-instill a sense of trust in the judiciary? The genuine resource constraint in judiciary not-withstanding, is it possible for our Milaards to become less insecure and open themselves up for transparent operation/critique (like they advise others to be)? Can they gracefully accept the outcome of freedom of expression if that freedom is exercised to raise concerns in their own functioning? Can our Milaards rid themselves of the Congressi culture and take its honourable place in New responsible & accountable India? As voters, it is high time that we become more vocal on this issue, become more demanding on this issue and become more vigilant on its development - our politicians need to be pushed for this, no doubt!

Jai Hind!