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Doctrine of Umbilical Cord puts onus on Executive to protect Supreme Court for own survival!

TIOL - COB( WEB) - 604
APRIL 26, 2018

By Shailendra Kumar, Founder Editor

INDIA is a vibrant and dynamically assimilative democracy. And the credit for the same goes to the foresight and long-term vision demonstrated by a large spectrum of Constitution makers, comprising of philosophers, educationists, agriculturists, religious leaders, social scientists, lawyers, the common man and ALSO politicians. For over 70 years if India is globally seen as a model participatory democracy, it is largely because of the constructive role played by both the Opposition and the part(ies) in power - the ruling majority. And what is constructive? Without any debate, it is a conscious and organised endeavour to build Institutions of unimpeachable repute. And what are these Institutions which our Constitution-makers gifted us in 1950? Some of the notable ones are - An independent judiciary, a responsible and vigilant Legislature, a neutral Election Commission, an independent Auditor (the CAG) and a fair and just recruiter (the UPSC or the State Public Service Commissions) for government jobs.

But, going by the rapid decay in the quality of our present generation of politicians, it can be anybody's guess how long this vibrant character is going to last!! First, we have failed to create New Institutions (Lokpal could have been one), apart from the ones given by our forefathers. Secondly, our failure is noteworthy in equal measure if we analyse our efforts to strengthen these Institutions. And if it comes to fixing responsibilities, the greater onus falls on the shoulders of our political parties in Opposition. Why not majority party? It is more so because the Executive powers tend to 'intaxicate' and derail them from the chosen path so that they hang on to the same for a long time to come! This is where the Opposition is mandated by our political system to be more responsible and constructive so that it could prevent the majority from erring and going astray! But, unfortunately, just opposite appears to be happening in the recent years.

If we talk of our Legislature(s), the quality of debate which has in any case become awfully pathetic, can be debated only if any debate takes place in the Parliament. A recent example is the Budget Session of the Parliament. The entire Session was stalled and washed out. It became so futile that the Government had no option but to resort to the Ordinance route to enact a new law to punish the fugitive economic offenders. If we go down to the State Legislatures to ascertain the quality of debate, the story is better told to us by the dilapidated conditions of the benches, chairs and tables in the Houses. The pigmy Marshals posted there may be seen playing more constructive role by removing the chair-breakers from the core zones of the Houses.

The most serious and sensitive development is the most irresponsible and condemnable assault on the highest judiciary of the country by the Congress Party-led Opposition front. Merely because certain judicial decisions did not provide the necessary ammunition to them to orchestrate a political attack on the ruling party, can at best be a kiddish ground to point accusing finger at the impartiality of the judges manning the highest court of justice. What is more ironical and shocking is the fact that the group of politicians who signed the Notice of Motion for Impeachment given to the Rajya Sabha Chairman, is largely constituted by knowledgeable and seasoned advocates who practice before the same court for their qualitative living standards. A good number of them also forgot that what they are today, has been given to them by this Institution only. Before embracing the skin of politicians they were practising lawyers and a good number of them, after being kicked out of power, have begun to practice again. Strangely, they also understand the letter and spirit of the Constitutional provisions to impeach a sitting Supreme Court or High Court judge better than most Indians may understand in the common parlance! They are so much educated that they also remember the detailed debate and amendments which were undertaken before our Constitution-makers vetted the provisions relating to impeachment of Judges. But, the colour of politics and also perhaps 'tipsy' powers, have 'possessed' them so much that they tend to give a loud DAMN to the constitutional propriety and circumspection required before any mud is thrown on an institution like the Apex Court.

Though our Constitution clearly prescribes the measures of Checks & Balances based on the doctrine of separation of powers for all the THREE VITAL organs - the Legislature, the Executive and the Judiciary, but the moral decay has eaten into the vitality of the first two Organs to such an extent in the recent decades that the Judiciary is the lone guard for protecting the Rule of Law as mandated by our Constitution. The higher judiciary is truly the sole 'sepoy' the Indian democracy has at its disposal today, to safeguard its intrinsic values. For the common man who has witnessed rude corrosion of its faith in the Executive and also the Legislature, the judiciary is the last pillar of hope for protecting its not only fundamental rights but also other legal rights. Knowing all these facts and also the fact that the group moving the Motion of Impeachment had no requisite number besides the absence of substantiable evidence of 'Misconduct' or 'Incapacity' against the Chief Justice of India, it was no less than a political hara-kiri! Even if the miniscule number of agonising lawyers who had some other axe to grind, what is more shocking is the fact that the Congress Party top leadership facilitated 'consented hijack' of their political equity to malign an Institution which has transformed itself into a dynamic protector of public interests in many spheres of common man's life. Some of the sane voices coming out of the Congress Party itself clearly indicates such a mishap! Worse, after their Notice was rejected they were quick to give a statement that they may move the very same Institution which is being vilified, for a Judicial Review!!

Anyway, thankfully, even before the besmirching campaign could do more damage in terms of immobilising the normal working of the CJI-headed Bench, the Rajya Sabha Chairman did a fast and appreciable job of not only rejecting the Motion but also giving wider publicity to the same. It was indeed a good damage-control decision as the news and more perniciously, the reckless and partisan views, were spreading like a Savanna forest wild fire! The history-making development was fast becoming the talk of the town even for the common man who found it very disturbing.

If we leave aside the issue of a new low that the body politic has hit in India, the larger issue of greater transparency and more democratic functioning in the administrative realm within the Supreme Court of India call for immediate soul-searching. A good number of senior fellow judges voiced their concern over certain issues and without going into the merit of their concerns, what is required to be done by the CJI as the head of the family is to take them along. It is fine that by delivering a decision a Bench headed by the CJI has reiterated that he is the BOSS insofar as the decision relating to rosters goes but much larger issue remains unanswered - why can't he take the unhappy brother Judges along with him? He needs to talk to them and sort it out - a very fundamental of what they do on a daily basis - resolving others' disputes!

Besides fratricidal differences, the much larger threat is, what Justice Kurian Joseph, has described as the unexplained delay by the Executive in vetting the Collegium's recommendation to elevate a Judge and a Senior Advocate to the Apex Court (Govt has played more pernicious politics by delinking the file and clearing the Senior Advocate's name for elevation yesterday night). This is where the ruling majority has struck a mortal blow not only to the Institution of Judiciary but also the trust of the people in its decision to do any good for the country. The dilatory tactics is largely being seen as a dastardly design by the Executive to influence or arm-twist the judiciary for favourable decisions in certain cases. This is unfortunate and a rude slap on the face of our Constitution makers who did everything possible up their sleeves to protect the independence of our top judiciary. The lower judiciary is, in any case, in a bad shape for various reasons. Even our dedicated Tribunals are not serving the larger purpose of doing justice. A good example can be the latest boycott of the Division Bench of the Ahmedabad CESTAT. The lawyers who are expected to serve the interests of justice or facilitate the same for their clients, have been boycotting the hearing (Reacting to it, the Registry has transferred prior to 2010 Customs cases to Mumbai Bench). Such face-off must be avoided as who suffers most are not the judges or advocates but the justice-seekers. So, the onus lies on the Ruling Party not to be seen as the damaging and integrity-corroding agent for the judiciary.

Another front where the present Executive appears to be failing is the Election Commission. Although the Supreme Court has directed the Government to explore the possibility of vesting Rule-making powers in this constitutional institution but the Executive is evidently reluctant if we go by the official stand of the Government in the court. It is high time while carrying out many mega economic reforms and other positive measures, the Modi Government must introspect and take corrective measures to save the Judiciary from being maligned and assaulted. Such measures would in the long run ensure longer survival of the Institution of Executive also because the common man retains a faith in any Governmental action as long as it sees the comfort of independent judicial umbrella. So, it must be realised by all the Organs of the Indian democracy that they share symbiotic relationships among themselves and their umbilical cord is common - the Constitution of India.