The effort to make the judiciary subservient to the executive persists in a new form. The Law Minister has declared that he would not remain a post office and has been making good his threat. He delayed the appointment of K. M. Joseph Chief Justice of Himanchal Pradesh as a judge of the SC for his judgment against President rule there thus making him junior to many whose names were recommended much later. Now, the government is sitting over the appointment of J. A. Qureshi as CJ M.P. because he had sent Amit Shah on police remand. There are other such cases.
Now, can the judges be expected to stand by the people against a fascist government? But strangely, those who should fight against it are maintaining a deafening silence.
- July ,2019
Why Judiciary’s Independence Is More Necessary for Us than the Judges.
There is a general impression that the question of the independence of the judiciary concerns the judges and not us. Nothing can be further from the truth.
Judges are public servants, who would work according to the term and condition of their service. When President Parvez Musharraf sacked the judges of Pak’s Supreme Court and made appointments to take their place, no new appointee declined to serve.
In our country, independence of the judiciary is a basic feature of the constitution and cannot be taken away. So, the politicians (the Executive) want to appoint pliant judges who would do their bidding.
Had Justice J.M.L. Sinha been a pliant judge, he would not have unseated Prime Minister Indira Gandhi in 1975.
It is only a judge independent in spirit and committed to the constitution who could have done what he did. And it is in our interest to have judges who stand by justice and not the political masters.
In 1973, Indira Gandhi contended in a case (Keshsvanand Bharati) that Parliament had absolute power to change (amend) the constitution. It could even end democracy and make India a monarchy. The Supreme Court rejected her government’s contention by a majority of one (7:6). An angry Indira Gandhi superseded 3 senior judges, who had rejected her contention and appointed the fourth Judge (in seniority) Mr. A.N. Ray the Chief Justice of India. During the emergency she transferred several High Court judges to different high courts to punish them for giving judgments against the government.
The judges got frightened and the S.C. gave a disgraceful judgment in a case (ADM Jabalpur v Shivkant Shukla). Its upheld Indira government’s contention that when the right to life and personal liberty has been suspended, the government could arrest, detain, torture or even kill a person and the court had no power to intervene. *
She again superseded Justice H.R. Khanna, who had rejected this dangerous and disgraceful contention (4:1) to send a message to the judges that they should behave or be prepared for the consequences.
These two examples show what might have happened to us and the nation and still may happen if pliant and servile judges are appointed. They would be loyal to their political masters and not the constitution and justice, while we, the people, would be paying the price.
Fortunately, in 1993, the S.C. by a verdict transferred the power of appointment of Judges of S.C. and High Courts from the Union government to a Collegium of S.C. judges. Under the present system the judges neither fear the politicians nor are they obliged to them for their appointment. They can thus act boldly in our interest against the government without fear, but the politicians are united in wresting the power from the Collegium to vest it in the government again by amending the constitution. They have not yet succeeded but are now trying to get it through back door i.e. by introducing objectionable provisions in the memorandum of Procedure.
The judiciary is resisting despite Modi government’s persistent pressure. It needs our (i.e, people’s) support.
By Prabhakar Sinha
- The Janta government amended the constitution to provide that Art.20 and the right to life and personal liberty under Art 21 cannot be suspended even during an emergency, and consequently, we are unaffected by the judgment of the S.C. in A.D.M Jabalpur v Shivkant Shukla.