The Supreme Court of India has struck down the 99th Constitutional Amendment as well as its corollary on the setting up of a National Judicial Appointments Commission (NJAC), despite the same being passed by Parliament and a sufficient number of state Assemblies. Clearly, despite their undoubted eminence and proficiency, the law officers appointed by the NDA could not convince the SC of the soundness of their case for retaining the 99th Constitutional Amendment and the setting up of the NJAC. Interestingly, during the arguments before the SC bench hearing the NJAC matter, the NDA law officers were unusually combative, one of them even going to the extent of declaring that the system of appointment of judges begun by Chief Justice J.S. Verma in 1993 had been “consigned to the graveyard” by the NDA government sworn in on 26 May 2014. Something that is in its grave obviously cannot be brought back to life, so the implication of the learned law officer was that the demise of the collegium was a fact of life that the verdict that was to be made by the highest court in the country could not affect. Among the details about judicial functioning mentioned in the open court by the law officers, in what seemed to the layman to be a very combative manner, was the revelation that a particular SC judge participated in 172 judgements but himself wrote only two of those. Not writing a judgement does not mean non-participation in the process of forming a judgement, hence the insinuation made by the law officers seems a bit misdirected.
Hopefully, the Supreme Court will itself accept the importance of ensuring fuller transparency in its functioning in this fifteenth year of 2015, for example, by ensuring that court proceedings across the country get live streamed on the internet. The names under consideration for elevation to the court by the SC collegium should be made public on a designated website in order to invite comments from a public often at its wits end at the law’s delays.
The time has come for the whip to be cracked on the delusional few who believe that the people of India will accept repeated infringements on their personal freedom.
Should the NDA decide to once again go through the legislative process and once again seek to get passed an amendment of the Constitution on the lines of that struck down, it is not unlikely that the apex court may once again pass the same verdict. Clearly, the Supreme Court is of the view that the basic structure of the Constitution mandates the inclusion of the independence of the judiciary from the executive, and that the way to ensure such autonomy is to seal off the executive and legislative branches from involvement in the selection of judges. That being the case, a better option before the government would be to itself set an example in transparency and in accountability. If the complaint is that judges are deciding on cases involving their own brethren, what about the numerous Information Commissions set up under the Right to Information Act? All such requests involve the doings of officials, and yet thus far neither the UPA nor the NDA has understood the incongruity of almost always appointing retired or serving officials to man the Information Commissions, thereby ensuring that officials judge whether other officials should be made to stand under the spotlight or not. Now that Prime Minister Narendra Modi will soon enter the third year of his term, it is desirable that he ensure that civil society predominates in such bodies rather than follow the Manmohan pattern of giving the dominant position to the civil service.
The RTI had been steadily weakened by the UPA from around 2011, and this trend needs to be reversed by ensuring that the colonial-era habit of officialdom of concealing information gets eliminated in the public interest. Also, PM Modi needs to seed non-officials in every department, including within the Central services, so that a much bigger pool for selection from this vibrant nation be utilised for filling posts crucial to the Prime Minister’s success in his mission to raise the annual rate of growth to double digits.
When the Chief Minister of Haryana warns that those eating beef do not deserve to live in India, is he by extension saying that the Japanese, South Korean and other beef-eating investors in his state should go back? When the Maharashtra Chief Minister warns that he will disobey the courts and continue the R.R. Patil legacy of banning dancing in bars and restaurants, is he giving a message to those intending investors who are not as hostile to watching a dance performance as he himself is that they should place their money elsewhere? Whether it be the beef ban or other efforts at using the laws and the police to convert the people of India into saints, or whether it be the recent efforts at cleansing the internet of adult content, such supporters of Prime Minister Modi are doing him and his mission immense harm. The time has come for the whip to be cracked, not on the people of India as is the usual reflex of our colonial system, but on the few who suffer from the delusion that the people of this country will accept infringements on their personal freedoms in a manner not seen in mature democracies, or that we are living in the 19th and not the 21st century.