Saturday, October 31, 2015

The Idea of India Syndrome

The striking down of the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act by the Supreme Court will go down as one of the most glaring display of judicial activism and legislation by the unelected in the history of the Court. The judgment does far more than comment on the constitutionality of the two pieces of legislation, but strikes at the entire constitutional system and eventually comes back to his the very people with whom sovereignty is supposed to lie.

The judgment falls on two counts and both of them can be termed sanctimonious. First, in one broad stroke, it paints the entire democratic system in India, the political parties, politicians and institutions (specifically the Law Minister) as evil fiends who must be kept out of judicial appointments for no other reason than that they have to be accountable to people through elections and Parliament. For the judiciary needs no accountability, because it says so, and interprets the Constitution accordingly, completely abusing its powers. On the second count, the verdict puts common people (the eminent personalities) out of the system as well as they need to be selected by a committee that is two-thirds political (the PM and the LoP). Therefore, the judgment completely turns the judiciary into an ivory tower, beyond the reach of anybody, at complete divergence from the Constitution and the original intent of the Constituent Assembly.

I call this sanctimoniousness the 'Idea of India' syndrome - the idea that a small, elite group of people can and should control India, for India's people are too stupid to know what's good for them and therefore, do not share the same 'Idea of India' as the elite, who are always right, no proof required. As it stands, the Indian judiciary has largely failed a vast majority of people. Dockets are overfilled, cases drag on for decades. According to one study, if there were no new case filed today, it would still take 360 years to clear all pending cases. This is ridiculous and, as if that were not enough, this judgment makes it impossible for people to have a say about judges themselves. The NJAC may or may not have had problems, but the fact is that if a man or woman on the street felt aggrieved by a judge granting endless adjournments, and then is horrified to hear that the same judge is being promoted to the higher judiciary, that person cannot even so much as write a letter of protest, because the Collegium holds its meetings behind closed doors and does not ask for public inputs, the only one of the three branches of government that has that sort of power. Sovereignty does not lie with any branch of the government, it lies with the people, but only in the judiciary have people been completely left out in the cold.

As if this were not enough, after the judgment, the judiciary has appropriated even more legislative powers to itself, because of course elected representatives of the people cannot defend the 'Idea of India.' The very act of asking for public comment on an improved collegium should have been unconstitutional, because the Constitution did not create the collegium and the courts cannot legislate to first create it and then invite comments to improve it, and yet that is exactly what is happening. If Parliament is creating bad but constitutional laws, it is for the people to judge, not for the unelected elite.

Finally, irony was slaughtered in the majority judgment, when one judge expressed fear that the government may discriminate against LGBT people in appointing judges. The Supreme Court sanctioned legal persecution of LGBT people a few years ago. If a judge is LGBT, they are liable to go to jail, and such a person cannot be considered suitable to be in the judiciary even by the Collegium. I fully support repealing Section 377 and ending the judicially-endorsed Victorian law that is a blot on our society and indeed, is alien to ancient Indian culture. But as the law stands, with the full backing of the Supreme Court, discriminating against LGBT people is perfectly legal, whether done by the Collegium or the NJAC. Exactly how this defends anybody's 'Idea of India' is beyond me.

Justice Markendaya Katju rightly said that the judiciary is beyond redemption now. With this judgment, it just fell a little further. 

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