Standoff between judiciary and executive is dangerous

The judiciary is the last line of defence against any assault on the Constitution and erosion of the rule of law. Unlike politicians, judges do not contest for power or seek popularity when they discharge their responsibilities. Theirs is to protect the Constitution without fear, favour or prejudice.

However, the recent developments in Indian judiciary have raised concerns about their freedom to execute their functions without having to look over their shoulders. Statements from some politicians, media and the RW ecosystem which cast aspersions about the intentions of 4 top judges, have compounded this.

It is a serious indictment on the judiciary to be called unpatriotic and promoters of hidden agendas. To the best of my knowledge, there is no evidence to justify such allegations. Rather than react spasmodically and demonise judges who are merely upholding the law, we need to debate more critically the constitutional relationships between Parliament, the executive and the judiciary. The country cannot afford a standoff between the executive and the judiciary.

Politicians, good or bad, do not always like judges whose decisions seem obstructionist. Whilst the constitution has given the judiciary freedom to do their job in the best interest of the country, politicians secretly wish the judges to rule in their favour. Hence the tension we are experiencing of late.

The constitution gives the Constitutional Court the power and responsibility to pronounce on the legality of any new laws referred to it or contraventions not dealt with by other arms of the judiciary. The executive then uses the laws passed by parliament with concurrence of the judiciary to govern the country for the welfare of all citizens. The day we betray that distinction, the country will begin to degenerate into anarchy or modernised fascism.

Noam Chomsky had this in mind when he warned, “The most effective way to restrict democracy is to transfer decision-making from public arena to unaccountable institutions: kings and princes, priestly castes, military juntas, party dictatorships or modern corporations…”

The day the judiciary is perceived to be the play-thing of powerful politicians, India will be in big trouble. Politicians come and go – but the judiciary as a permanent institution should ensure stability and credibility of the system.

Any banana republic must, of necessity, first corrupt the justice system. Once you do that, courts and prosecuting authorities are reduced to a charade to protect criminals, political mobsters, the rich and the powerful.

Take similar chain of events that happened in Poland. Last year Poland’s constitutional court ruled against a set of government reforms aimed at changing how the court works, deepening a months-long constitutional crisis with a verdict the ruling conservatives said they would not implement. The standoff over the reforms and a series of new appointments to the court hurt investor confidence in eastern Europe’s largest economy.

The EU had to warn of sanctions such as a suspension of its voting rights and freezing of its EU funds. Since winning an outright parliamentary majority a year before, the Law and Justice (PiS) party had repeatedly tried to change the court’s operational rules, including changing the order in which cases were heard. It had also scrapped the previous parliament’s nominations for judges and put forward its own candidates. Critics said the reforms and nominations were aimed at stacking the court. Warsaw’s closest ally, the United States, repeatedly expressed concern over the crisis.

Experts expressed serious concerns this could lead to a split in Poland’s legal system, as some state institutions including lower courts recognised the court’s verdicts against the government’s will.

South Africa too faced similar crisis in 2015 when the SA Govt found itself in a standoff with their judiciary that almost threatened an unprecedented crisis.

India faces a challenge that could very well lead to anarchy if restraint is not practiced on part of the executive and let judiciary function independently. The former CJI Thakur did express serious displeasure and anguish at the Modi Govt not cooperating in appointment of more than 53 judges that was crippling the judiciary.

It’s time for the wisdom to prevail now!

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