Deekhit Bhattacharya is an Advocate based in New Delhi. He has co-authored a recent book, “Delimitation & States Reorganization”.
NEW DELHI: The opprobrium surrounding the Waqf amendment, the Supreme Court judgment against the Tamil Nadu Governor, its unexpected direction to the President, as also the cash-at-home fiasco of a judge in the Delhi High Court, have generated much debate. The views expressed by the Vice President, who is a constitutional functionary vested with executive, legislative, and judicial powers, and by some MPs on the SC, are wholly appropriate. The judiciary has surely crossed the Lakshman rekha, and entered into the exclusive domain of the legislature—the people’s representatives. The court’s assumption of legislative and executive powers is demolishing the Constitution’s checks and balances. The consequences strike at the very root of democratic governance. The Constitution accords a certain sanctity to the legislature, and the country’s fate has been boldly placed in the hands of the people. Thus was Westminster-style democracy constitutionally enshrined in India. Extensive privileges enjoyed by the British parliament were imported intact, and courts were specifically debarred from interfering with the legislature, even knowing fully well that excesses on the part of the legislature were bound to crop up. These excesses were constitutionally permitted for two simple reasons, which are essential to any democracy—the people deserve what they voted for, and misadventures are corrected by voting out errants. Elections are the only true test of legitimacy in India, as well as the final word on the evolution of the relationship between the Rashtra (nation) and the Rajya (State), i.e., how the Constitution ought to function and change. Any democracy must have limits on the exercise of power; however, such limits can only be framed by a democratically elected legislature (as was the Constituent Assembly). That which was democratically determined can only be democratically altered, and democratically interpreted. The court, newly-unfettered post-emergency and eager to attain irreproachability, gradually started entering the legislature’s domain and performed a systematic dismantling of the institutional checks and balances that the Constitution placed on it. Today, 50 years later, it is practically suffocating the legislature. Parliament committed a cardinal mistake by acquiescing to the Kesavananda Bharati verdict and has effectively abandoned its responsibility to the people who elected it—the responsibility to uphold the Constitution as being the only organ of government empowered to make laws. It is a custodian of the Constitution and it has failed in this duty. The legislature must now realise that enough is enough—its powers have been practically eroded fully by the judiciary. It must place a check on both executive and judiciary, instead of getting straitjacketed by both, as seems to be the present situation. An unchecked judiciary can eclipse democracy completely. An unchecked executive can ride roughshod over the legislature especially in today’s times when one party or alliance has a simple majority in parliament. The SC cited Pakistan’s example to justify its recent decision concerning the Governor and President; Pakistan also saw a judicial dismissal of the Prime Minister based on a tortured constitutional interpretation in 2017. Could such a thing happen in India with the newly found confidence of the court? Our constitution specifically forbids courts from questioning the speaker as to the determination of money bills; the SC ignored the stipulation, and almost undid the massive money-saving achieved through direct benefit transfers via Aadhaar. Nupur Sharma was viciously victim-shamed from the bench; this should have warranted a de novo consideration of the matter owing to obvious vitiation. A studied silence is being maintained on the repeated instances of ethnic cleansing of Hindus in West Bengal, while Manipur received attention. When constitutional challenges to the Waqf Act were made to the SC, petitioners were ejected to the High Courts; now that consternation is expressed against the amendment, the court commenced hearings in a matter of mere days. The SC transferred the impugned judge of the Delhi High Court and began an inhouse enquiry, even though the constitution clearly has a scheme of impeachment where the investigative and determinative powers for such conduct has been granted solely to the legislature, perhaps due to the obvious conflict of interest a judicial inquiry may entail. The opaque system of collegial appointments is sui generis constitutional abuse, where interpretation has been stretched beyond conceivable limits to foist a closeted means of judicial self-appointment, alien to the constitution. When the essence of the basic structure doctrine (itself an unwholesome and unreasonable restraint on the exercise of popular will) is that the legislature’s amending power must be exercised within the quintessential rubric of the constitution, why must the same standard not apply to judicial interpretation? Justices of the Supreme Court often lament so-called “media trials”. While some perturbation is warranted, how much of the acrimony is due to a loss of credibility owing to interference and, what some would say, hypocrisy? When a judge presides over his own sexual harassment case, or unceremoniously arrogates to themselves the powers which have been exclusively granted to the President, confidence in the court is bound to plummet. More depressingly, the denigration of the court to an arena for electorally defeated forces seeking to frustrate or overturn legislation by elected governments, is a threat to democracy. A judicial backdoor to prevent legislation by window-dressing political issues to masquerade as constitutional ones raises serious concern. Indeed, what use is the legislature, or any sort of constitutional balance of power, when one fears a judicial veto at each step? There is a deficiency of accountability, and an inexorable surfeit of arbitrariness. No clear standards exist for judges’ appointment, the basis for admitting cases, when such cases will actually be heard, and how judges will be allocated to preside over such hearings. Reasons for such administrative decisions are seldom mentioned. Had the executive engaged in such capricious behaviour, would the courts not have taken umbrage? Likewise, for the average case, the journey from the trial court to disposal by the Supreme Court takes around 13.5 years. The Supreme Court accounts for roughly a third of such time. At the time of writing, 41.61% of all ongoing matters in the Supreme Court are older than 5 years, a figure that has more or less remained the same (slightly increased, in fact) since 2018. 36.21% of ongoing matters are older than 20 years. This has not stopped the court from admitting special leave petitions indiscriminately, at the cost of more ‘regular’ matters. When the SC places extra-constitutional time limits on Governors and the President, does its own state of affairs not warrant action? Or is the law to be applied based on the colour of one’s gown? The final and only legitimate arbiter of policy, procedure, and even constitutional perspective is an elected legislature. The restoration of parliamentary supremacy is the need of the hour. Anything else will be a fraud upon the democratic aspirations of the Indian people, an infantilization of the same people from whom the Constitution draws its legitimacy. The Constitution is not a holy book, and the judges are not priests— it is a fluvial record of the Bharatiya social contract, ascertained by the democratic mandate alone. MP Sasmit Patra had succinctly summarised, “no five-judge bench of the Supreme Court can represent 140 crore Indians”. It is worth recalling that the country corrected the legal blights of the emergency by installing a new government—it was not a judicial correction, but an electoral one, followed by a legislative one. May the foregoing concerns of a citizen not be conflated with contempt. वयं राष्ट्रे जागृयाम पुरोिहताः – यजुर्वेद ९:२३.