Tyranny of the Unelected Influencing Judiciary

Introduction:

Tyranny of the unelected Judiciary was first stated by India’s Finance Minister, Mr Arjun Jaitley who questioned this fact publicly and as flawed and against the basic structure of the constitution of India. There are three basic organs of the government:

1. Legislation, i.e. to make laws
2. Executive, i.e. to execute laws
3. Judiciary, i.e. to enact laws

All these organs maintain checks and balance over each other, together they work as a powerful organ and no other organ can work with the same power. The Legislature is elected by the people, and in turn, Executive Organ is elected but the Higher Authority that is Judiciary is not elected by us and we do not have the power to elect the Judiciary that are Supreme Court, High Court and the other Lower Court Judges.

The ‘Doctrine of Separation of Powers’ is a segment of the Basic Structure of the Indian Constitution.

The Judiciary is an unelected body and hence it is exhibited to assessment or criticism by the media, elected body, people or political leaders. There is a circumstance where the actions of Judiciary are not appropriate but it cannot be stated as the Tyranny of the Unelected, it should be kept in mind that the Judiciary is the only higher body to keeps an eye on the elected representative and the ill acts committed by them.

The Hon’ble Supreme Court of India recently gave a judgment where it declared a constitutional amendment as nullified along with the pertinent laws on the formulation of National Judicial Appointments Commissions (NJAC) with the political portrayal by India’s Finance Minister, Mr Arun Jaitley and his ministerial aide like Ravishankar Prasad and Sadananda Gowda, Law Minister, bangs of a first towards the Committed Judiciary at the time of Indira Gandhi, in which Steel Minister Mohan Kumar Mangalam had touted.

The case was of the time when Emergency was declared, and under the political representation of Kumar Mangalam kind and elimination of appointment of A N Ray, as Chief Justice of India; CJI who was ahead of three of his seniors. Niren De; who was an Attorney-General squabble that during emergency citizens do not have the right to life and his Fundamental Rights guaranteed under the Constitution of India was dangling.

In 1977, the nation faced post-emergency electoral verdict and the then Prime Minister Indira Gandhi of the Congress Party had the state of shock be it in terms of physical, mental, moral, electoral. The State or the Bench makes the delay in hearing of the issues in Judiciary. The press media has stacks written about the individual Judges of the Higher Authority that is the Hon’ble Supreme Court on Socio-political and socio-economic ideologies, as to judgements of the cases like why the particular judgement is given like this or the case can be decided on this or that basis and many more. In order to reach the level of healthy discourse the Indian Judiciary and polity have to accept the conduct of these intuitions or individual endowing them.

In order to make this happen, the nations most sacred institutions, the society and polity have to demonstrate their innocence and not ignorance before soliciting any change of the kind dealing with arrogance will not help in the case that has become a hyper issue. Before commenting on Individuals or institutions, the Government of India should look at themselves.

When the Prime Minister, Narendra Modi came into power, he made the National Judicial Appointments Commissions laws the topmost priority for the nation. The Congress Government talked about it for too long. M Veerappa Moily, The Union Law Minister, publicly plighted to bring a draft bill for Parliament’s scrutiny.

Government of India, Narendra Modi along with Jaitley and Prasad to be questioned, about appointing the CJI P. Sathasivam as Kerala’s New Governor and why not any other candidate for the post of Governor, or retired Army officer Gen VK Singh is on the ministry post in Modi’s Government, in fact, RP Singh who was nominated for the position in Lok Sabha for UPA-II’s Home Secretary and also won the seat.

The BJP-Congress also had a whip-lash over the misuse of CBI or any other institution. The comptroller and the Auditory General; TN Chaturvedi who disclosed about the HBW Submarine Scam, in which there was an involvement of Congress Government, and later not so soon before the retirement became the BJP Member of Rajya Sabha and then the Governor of Karnataka when at the central power was in the hands of Vajpayee of BJP-NDA.

There was no difference when the Congress party was in power, there were rivalries too. All the acquisition against the party in the appointment for autonomous institutions like Crime Branch of Investigation; CBI ad Comptroller and Auditor Generals; CAG despite the issuance of the verdict and directions by the Supreme Court of India in the case of ‘Vineet Narain’[1], along with the appointment of CAG in UPA-IIs.

The Congress Government even wanted the Parliament to decide the first impeachment proceedings against the Justice V Ramaswami who was a sitting judge at that time and to decide not on terms of moral, legal or judicial but on political terms. In a way of electing authority in the President not having the power to expel judge and the terminating or expelling authority in the Parliament, acting without terminating authority, should be contrary to the tenents of Constitutional Behavior and also in contrary to the doctrine of ‘Basic Structure’ of the Constitution.

Some Emendations

The judgements stated in the case of NJAC case is given by the Government Lawyers within the court halls and not by the speeches given by people in Parliament. These thinking are the result of the sketchy newspaper reports. The explanation or quick fix to the problem in providing clarity in appointing judicial officer, deportation and promotions should and could be from the verdict of The Hon’ble Supreme Court of India. There is a clear harmony or consensus among political parties and parliamentarians on holding the Judiciary Liable and the transparency in appointing judicial officer can be done within four walls of the constitution.

Three Era Which Affected the Functioning and Autonomy of Judiciary

1. 1966-1977 and 1980-1981:

The period of emergency where Judiciary suffered colossal misery, it allowed in substance to the doctorial rule of Mrs Indira Gandhi and in result lost its institutional cachet and cohesiveness. After the Kesavnanda Bharati Case, the government limited the basic structure of the Constitution. The Emergency power exercised by judiciary was restricted by the Government and made laws beyond the blanched of Judicial review.

• 1985-2014:

The three categories were developed by the Judiciary in these years, and they are as follows:

1. PIL; Public Interest Litigation
2. Evolution of Human Rights Jurisprudence
3. Rule of Law

The judiciary interpreted Article 14, 19 and 21 as the right to life that provides every citizen to have clear air, speedy trial and free legal aid. Public Interest Litigation; PIL is founder of the Supreme Court in the court for the common man. The illegal acts of the elected, in which major decisions were given,

1. Dissolution of Bihar Assembly Unwarranted; Rameshwar Prasad and ors.  v.   Union of India[2]
2. Hawala Scandal[3]
3. Cancellation of 2G licenses
4. Rejecting of Candidates
5. Coal Scam

In all these case Supreme Court to play a bizarre role in the governance of the nation restored judicial autonomy and activism.

During BJP Government as of Narender Modi Time (2014-2019):

With coming of Modi Government, the Hon’ble Supreme Court became one of the most powerful courts of law, thereby judiciary lost its autonomy by amending the Constitution, Judiciary brought National Judicial Appointment Commissions for the Judicial Appointments. The amendment was struck by the courts which led to the animosity in the Government and led delay in for the appointment of the judges and transfers, as a result, there were vacancies in the High Court. This also led to the major transfer of judges.  

Two cases with Political bet:

1. Sahara Birla Papers Case [4]
2. Loya Case

In these above-mentioned cases, the court questioned the admissibility of the documents and expel the petition seeking autonomy probe.

1. Rafael Case, in this no judicial review was conducted to probe in corruption and instead they declared that there was the presence of correct and proper documents.

The Executive won over the Judiciary with interference in the appointment of judiciary and constitution benches.

Judiciary played an important role in Constitutional Case also, as Preserving Human Rights (Sabrimala Case), Homosexuality Cases, Article 370.

Judiciary Playing an Important Role in the Time of Covid-19

Public Interest Litigation were filed in the Court of law. The Hon’ble Supreme Court handles the matter of Migrant Crisis.

1. The state and centre were accountable for the migrant workers.
2. The government was given 15days time to send migrants back to their home safely.
3. The fees charged by the Hospitals were very high, the Judiciary questioned the government and asked them to reduce the rates.
4. The government was ordered to remove the charges on the migrant workers.
5. Supreme Court ordered CSE and ICSE to cancel the exams

Conclusion

With the Autonomy of judiciary, Review and Activisms, judiciary went through many ups and downs but still did not crossed limits, the powers of the judiciary were also restricted by the Executive in order to protect the Doctrine of Separation of Powers.

Judiciary has become the casualty of the Tyranny of the elected and not of the unelected. It is the only higher authority that will control the wrongs and illegal acts committed. It has protected Human Rights, introduced PIL for Common people. Judiciary is too under danger and running under robust.   

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References:

[1] 1997

[2] 2006

[3] 1991

[4] 2017