Who will judge the Judges?
Aditi Kumaria Hingu
The Republic of India has a federal
government, comprising of the Executive, Legislative and Judicial
branches. This structure is based on the
Constitution of India. The Constitution framed a system of governance in which
the powers conferred by the people are not vested in either a single person or
a single institution. Therein came the principle of ‘Separation of Powers’
among the three pillars of democracy – the Executive, the Legislature and the
Judiciary.
The Executive comprises the Prime Minister and his council of
ministers (the temporary executives) and the Civil Servants and other officers
(the permanent executives). They have the sole responsibility to ensure daily
administration of the nation/state. They propose policies, and once approved, ensure
that policies are implemented in a timely and effective manner.
The Legislature comprises the Parliament (Lok Sabha and Rajya
Sabha). It is the policy making body of the country where all bills proposed by
the Executive get discussed, debated, amended, approved or rejected.
The Judiciary is the adjudicating body which is independent of
the Executive and Legislature. The bills proposed by the Executive and the laws
passed by the Legislature are subject to judicial review by the Supreme Court
of India. The Judiciary has the power to declare a law null and void if it
violates the constitution.
However it is a matter of national shame that the very Judiciary
which is tasked with ensuring that the Constitution is followed is now flouting
its principles on a regular basis with impunity.
Three recent judgements made by the Supreme Court of India come
to mind –
In November 2016, the SC mandated that the National Anthem must
be played in all theatres prior to screening of movies. Neither was the ruling
well thought through, nor was it made clear as to how would this be
enforced. Movie-goers were confused
whether they should stand up in case the National Anthem is played as part of a
movie. Physically disabled members of the audience were assaulted for not
standing up when the anthem was played. It took clarifications and
notifications from the Ministry of Home Affairs to clear the air on this
issue. The Honourable SC seemed to have
forgotten the fact that patriotism cannot be enforced. If at all, it does need
to be enforced, who will be the enforcing agency? Should the Indian Police
Force, which is under-staffed and over-worked, be asked to let go of their
current duties during movie times?
The second judgement was the April 2017 ban on all liquor
vending outlets, including Hotels and Restaurants, within 500 metres of
National and State Highways. If people drink and drive, accidents will happen.
The source and distance of liquor purchase is not a variable that impacts the
casualty rate. It will be worthwhile to monitor road accidents for the period
of April 2017 – March 2018 and compare it to the same period, a year ago. There
is very high probability that there will not any significant reduction in the
casualty rate. However there would be another metric that would have dropped
significantly – the rate of employment.
It is estimated that around 1 million jobs will get impacted in the
hospitality industry due to this law. Assuming an average family size of 5
members, this law directly hits at the livelihood of 5 million people. Not only
is this a silly order, it is also a clear case of judicial
overreach since the prohibition of consumption of intoxicating drinks is a
directive principle which is under the aegis of the duly elected government.
Lastly and the most dangerous example of
judicial overreach has been the SC’s decision to reject the curative petition
of the government and uphold its earlier direction of 8th July 2016,
wherein registration of FIR against Armed Forces Personnel has been made
mandatory for every encounter death. This includes disturbed areas where Armed
Forces Special Power Act (AFSPA) is in place. The Army and paramilitary forces
are deployed in sensitive areas due to the breakdown of civil machinery. Apart
from helping maintain order, they also serve a humanitarian role – hospitals in
the Himalayan region, the Goodwill schools in Ladakh, the roads maintained by
Border Roads Organisation are just a few examples. Yet, our Honourable judges
chose to paint the soldiers with the same brush as they would a common
criminal. No soldier wants to kill his own countrymen. But if there is a threat
to the country’s sovereignty, he will risk his all and fight. He will either
kill or get killed. Now, with this
judgement passed by the SC in its hallowed portals at New Delhi (far away from
the harsh realities of Siachen and Sukma), the soldiers have no option but to
either let the terrorists escape or get killed themselves.
It is indeed a sad day for the Republic of
India when one of the pillars of democracy, the Judiciary, itself becomes an
enemy of the nation. Not only does it break the norms established by the
Constitution by its acts of judicial overreach, it also harms the country’s
freedom of expression, economy and security.
The enormity of the Judiciary’s misplaced zeal
becomes even more obvious when one considers the abysmal track record of
justice dispensation in India. There are 30 million cases pending in India.
Even if one assumes that a case involves only two people, it is tantamount to
60 million people waiting for justice. Despite these millions of people waiting
for justice related to criminal and civil matters – murders, rapes, criminal
intimidation, property disputes, cheating- the highest court in India, decides
to focus its energies on when the national anthem should be sung, where should
liquor not be dispensed and how should soldiers fight wars. If this is not a
mockery of justice, what is?
(Aditi Kumaria Hingu is a marketing graduate
from IIM Calcutta, currently she works in the corporate sector. She comes from
an army background.)
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