Poland’s ruling ‘Law and Justice Party’ (PiS), since assuming office in 2015, has tried to seize control of the judicial institutions of the post-1989 Third Republic.

PiS leader Jaroslaw Kaczynski told supporters in 2016 during a speech that “in a democratic state of law, not even the highest judicial authorities, such as the country’s Constitutional Tribunal, should have the right to defy the executive. In a democracy, the sovereign is the people, their representative parliament and, in the Polish case, the elected president. If we are to have a democratic state of law, no state authority, including the Constitutional Tribunal, can disregard legislation." The Tribunal is Poland’s highest constitutional court, the final arbiter on the constitutionality of domestic and international law, and on actions taken by state bodies.

According to the Constitution of India, India is a democratic nation with a parliamentary form of government and an independent judiciary, which is separate in terms of powers and areas of responsibility from the legislature and the executive.  The doctrine of separation of powers implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities.  The executive is vested with the power to make policy decisions and implement laws.  The legislature is empowered to issue enactments.  The judiciary is responsible for adjudicating disputes.  The doctrine is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in its text. 

Eminent jurist Fali Nariman in his book ‘The State of The Nation’ wrote, “The sin of corruption is not confined to politicians, ministers, and bureaucrats. In India it has infiltrated into all organs of the state – with one difference: whereas the media, print and electronic, is not constrained when questioning or publicizing wrongdoing amongst public officials (except for the sanctions imposed by the general law of defamation), the same is not the case with regard to questioning alleged lapses of good conduct amongst the judges in the higher judiciary. These judges enjoy almost complete protection under the law of contempt: laws that are administered and interpreted solely and finally by the judges themselves”.

Smt Indira Gandhi in a speech in the Lok Sabha on 27 October 1976, before tabling of THE CONSTITUTION (Forty-third Amendment) Act, 1977, claimed that the amendment "is responsive to the aspirations of the people, and reflects the realities of the present time and the future" Her Law Minister H R Gokhale introduces 60 amendments during emergency period (25 June 1975 to 21 March 1977) pertaining to preamble, Schedule, Parts and Articles. Incidentally, The Constitution (Forty-second Amendment) Act, 1976, inserted various articles in the Constitution to curtail, both directly and indirectly, the jurisdiction of the Supreme Court and the High Courts to review the constitutionality of laws. But after emergency, Janata Party introduced THE CONSTITUTION (Forty-third Amendment) Act, 1977 on 16 Dec 1977 and repealed six articles that had been inserted 14 months back in the constitution. There is a need in the present circumstances of judicial activism to relook at those articles deleted by the Janata Party.

WAY FORWARD

In recent days we are coming across instances of Courts humiliating, disparaging, ridiculing and denigrating duly elected governments and other constitutional authorities. It is not uncommon for judges to issue decisions that intentionally attack the core of electoral democracy. Giving the judiciary a free pass and the right to make irresponsible comments against other constitutional bodies indicates that the highest court will hold everyone else responsible for their lapses except its own kind.

The doctrine of separation of powers is not codified in the Indian constitution. The present government with two-third majority should bring in Constitutional Amendment to address that. There have been some cases where the courts have issued laws and policy related orders through their judgements. It needs to be remembered that courts cannot run the government.

At the end of the day, the judiciary is not accountable for anything that goes wrong, but the executive and the legislatures are - to the people. But what we are seeing is increasing encroachment of the higher judiciary in executive domains. The latest evidence of this is the Supreme Court’s decision to constitute a 12-member National Task Force on Covid response which will also work out a rational system of allocation of oxygen to hospitals and states.

Without any audit or inherent competence to assess Delhi’s actual requirements, the court ordered the Centre to supply 700 tonnes of oxygen to Delhi, and refused to stay the Karnataka High Court order to supply 1,200 tonnes to that state. 

The questions are: who will take the blame if things continue to go wrong on oxygen supplies? AG and SG look dumb during proceeding when Judges abuse Government. They get their salary whether they win or lose a case. On the other hand, private lawyers who take millions for a single hearing, would do anything and everything to win the case.

Last week, the apex court refused to pull up the Madras High Court  for suggesting that the Election Commission could be charged with “murder”, and the Allahabad High Court went ballistic and claimed that Uttar Pradesh’s failures on the Covid front were tantamount to “genocide”.

According to replies given by the Union Ministry of Law and Justice in Parliament last September, the total number  of pending cases in all courts rose to 4 crore from 3.65 crore just seven months ago. As on 1 May 2021, the Supreme Court had 67,898 cases in various stages of pendency, and various High Courts had 5.75 million cases pending with them. This is resulting in an agonising wait for millions of hapless litigants. Supreme Court and High Courts are guilty for callousness and administrative failure for the inordinate delay in delivery of justice amounting to judicial genocide. By this token, courts can be accused of allowing “slow genocide” of poor and hapless masses.

But even if we assume that the courts are beyond questioning in their own areas of operation, how is it acceptable that they should get into areas of governance. Isn’t this a breach of the “basic structure” of the constitutional scheme of things, as decided by the 13-Judge Constitution bench of the Supreme Court in the Kesavananda Bharti case of 1973?

In 1983 when Justice Bhagwati introduced public interest litigation in India, Justice Pathak in the same judgement warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”.  Justice Katju in 2007 noted that, “Courts cannot create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles.

In recent Calcutta High Court 5-Judges bench kept on persuading SG that Mamta and her goons intimidating CBI and CBI Court is not at all disturbing to judiciary. SG should have, but could not, asked Judges whether they are legalising this type of terror act? Tomorrow if a terrorist is put in jail, all the terrorist from India and neighbourhood would join hands to intimidate the court because as per court this is fundamental right of people to protest. Is this not an assault on democracy too?

This is the time for present government with 334 members out of  543 in Lok Sabha and 123 members out of 245 in RAjya Sabha should discipline SC and HCs. Following constitutional amendments should be introduced in that direction:-

Article 131A

Article 131A which was repealed by THE CONSTITUTION (Forty-third Amendment) Act, 1977 should be restored to give the Supreme Court exclusive jurisdiction to decide the constitutional validity of a Central law and thus deprive the High Courts of their jurisdiction in respect of the same.

Article 226A

Article 226A which was repealed by THE CONSTITUTION (Forty-third Amendment) Act, 1977 should be restored. The High Courts are the highest courts of law in the state or union territory in which they are situated or have jurisdiction. Their judgments should have legal effect within the territories of the states and/or union territories over which they have jurisdiction. Article 226A would bar the High Courts from deciding the validity of any Central law.

Article 226(2) in the Constitution of India 1949

Article 226(2) should be omitted because it gives unfettered power to HCs to trample any Central law, policy, etc. Had the Supreme Court not stepped in, each High Court would have decided allocation of oxygen to its state, which is an exclusive function of executive.

Article 32A

Article 32A which barred the Supreme Court from considering the constitutional validity of any State law in proceedings for the enforcement of fundamental , unless the constitutional validity of any Central law was also in issue in such proceedings, should be restored. This will help SC to clear its own backlog without getting unnecessarily dragged in State Law for which respective High Court is sufficient.

Article 228A

Article 228A was repealed by THE CONSTITUTION (Forty-third Amendment) Act, 1977 should be restored. It required that there should be a Bench of at least five Judges for determining the constitutional validity of any State law and prescribed a special majority for a judgment invalidating such a law.

Article 144A

Article 144A  which was repealed by THE CONSTITUTION (Forty-third Amendment) Act, 1977 should be modified and restored to provide that the minimum number of Judges of the Supreme Court who shall sit for the purpose of determining the constitutional validity of any Central law shall be seven and required a special majority of two-thirds for referring the law back to Parliament with detailed reason for re-consideration if the law is found to be unconstitutional.

JUDGEMENT BASED ON PERCEPTION

How can perception and judgment be distinguished? This issue has plagued perception research for a long time because there are always concerns as to whether a given phenomenon is perceptual, or, due to judgments instead. Law should be made to ensure that Judges do not pass judgement based on their perception. Words like ‘in our/my opinion ..’ should not find a place in written judgement. Each judgement should be based on law clearly manifested in the order.

If this government is able to bring in much required amendments, we are sure each column of  state would get enough oxygen to excel in respective domain.