Judiciary-Executive squabble The underlying cause and remedial course


Of late, it is found that there is an ongoing stand-off between the BJP-led central government and the Supreme Court. While the Judiciary is expressing concern over violation of democratic norms and principles, the government in turn is accusing the Judiciary of overstepping its jurisdiction. For example, the Supreme Court rapped the Centre over short tenures of the Chief Election Commissioners (CECs) terming it a disturbing trend and ‘exploitation of the silence of the Constitution’. The Apex Court is miffed at the absence of a law governed process of appointments of election commissioners and chief election commissioners. There is also a tussle going on over the existing Supreme Court supervised collegium system of appointment of judges and the proposed National Judicial Commission where the government would have an important say in the matter. Thirdly, a Bench of the Apex Court has also pointed at the way legislators are purchased to defect to the ruling party. Naturally, thinking people of the country cannot but feel disturbed over this wrangle and seek an answer as to why such disagreement between the Executive and Judiciary is surfacing so openly and what is the underlying cause. So this is our attempt to delve into the matter and unearth the truth.

Appointment of Election Commissioner
At the outset, let us have a glimpse of the disputed issues. The central government appointed one Shri Arun Goel, a former bureaucrat, as an election commissioner. Since May, this year, the post of one Election Commissioner (EC) in the three-member Commission was lying vacant. Goel would be in line to be the next Chief Election Commissioner (CEC) after incumbent Rajiv Kumar demits office in February 2025. Goel’s total tenure in the Election Commission would be of over five years. Goel was the Secretary in the Ministry of Heavy Industries until the day his voluntary retirement came into effect on 18 November only. Pertinent to mention that, the process of this appointment was what initiated the very next after the SC started examining the need to insulate the Election Commission from political influence by setting up a ‘‘neutral and independent mechanism’’ for appointing ECs and within two days of Goel’s voluntary retirement from service. While hearing pleas challenging the constitutionality of the present appointment process of CEC and ECs, a five-member Bench of the Supreme Court headed by Justice K.M. Joseph contended that appointments were being done as per the whims of the Executive.
At the outset, the Bench had asked the union government to produce the file, saying while the demand was not adversarial, ‘‘we want to know, as you claim that everything is hunky dory.’’ The Bench said it wanted to know whether there was any ‘‘hanky panky’’. Then the Bench perused the union government’s original file pertaining to Goel’s appointment as EC, and said, ‘‘What kind of evaluation is this? Although, we are not questioning the merits of Arun Goel’s credentials, but the process.’’ It also questioned the ‘‘haste’’ and ‘‘tearing hurry’’ in appointing Arun Goel as Election Commissioner. The top court said the 1985-batch IAS officer got voluntary retirement from service in a single day, his file was cleared by the Union law ministry in a single day, a panel of four names were put up before the Prime Minister and Goel’s name got the nod from the President within 24 hours. The Bench queried the Centre’s counsel if that was not a complete breakdown of the system. The CEC, it observed, is supposed to be insulated from political influence and should be independent. It further added that these are aspects which the Centre’s counsel must go into deeply, and why we require an independent larger body for selection and not just the Cabinet. People manning the Election Commission of India should not be ‘‘yes man’’ of the government but ‘‘independent who can act independently’’ even if it comes to taking on the Prime Minister. So, the appointment should be procedure-based and transparent. The Bench further observed that based on the list maintained, there were 4 names which were recommended. It wanted to understand that out of a vast reservoir of names, how the government actually selects a name. Goel was the youngest among the 4 recommended names. What then was the criteria of selection, the Bench queried. The Bench also questioned why, when the vacancy had arisen on 15 May, the process was delayed until 18 November and then suddenly fast tracked. ‘‘Can you show us from 15 May to 18 November, what did you do? What prevailed upon the government that you did this appointment superfast on one day? File has not even travelled 24 hours also. Lightning fast!’’ asked a member judge of the Bench. The Bench also said none of the four names in the panel were ‘‘carefully hand-picked’’ by the Union government so that they could complete a six-year tenure. ‘‘As per law, they have fixed a tenure of six years or up to the age of 65 years, whichever is earlier. But, looking at the list of the chief election commissioners since 2004, the majority of them were found to have a tenure of more than two years. Most of them were former bureaucrats and the government knew about their age. They were appointed at such a point that they were never able to complete six years and had a truncated tenure. Hence this is a violation of Section 6 of the Chief Election Commissioner & Other Election Commissioners (Conditions of Service) Act, 1991,’’ Justice Joseph noted. When asked to show the mechanism applied in the appointment, the Attorney General representing the government questioned if the honourable judges were having no confidence in the Council of Ministers. Rebutting that, Justice Rastogi, a member of the Bench, said, ‘‘No, we are saying for our satisfaction, show us the mechanism you adopted in the appointment two days ago. We are not concerned with this political party or that political party. This percolates down to the fundamental right of the individual,’’ the judge said. When the AG told the Bench ‘‘to hold their mouth for a while’’ and instead to look into the issue in entirety, Justice Rastogi, told him, ‘‘You have to listen to the court carefully and answer the questions. We are not commenting on individual candidates but on the process.’’
One thing is, therefore, clear from these arguments and conversations that the appointment cannot be given a clean chit. In fact, it has been seen for quite a few years that the Election Commission, notwithstanding all tall talks and verbiages about its commitment to hold a ‘free and fair election’, functions virtually as an appendage to the ruling party. No one has ever found the Election Commission taking any proper step to stop a slew of malpractices to tamper with election results in favour of the ruling party, let alone recommending punishment of the offenders. The so-called autonomy of the Commission packed with ‘yes men’ has meekly surrendered to the whims and dictates of the ruling party enjoying backing of the ruling monopolists. This administrative power enjoyed by the ruling party comes handy in manipulating poll verdict in its favour. Thus, election is turned into a farce making mockery of democracy that the ruling quarters boast of.

Collegium vs National Judicial Commission
Next is the row over authority of appointment of judges. Hitherto, judges of Supreme Court and High Court have been appointed or transferred by a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other senior most judges of the Court at that time. This is known as the collegium system which has its origins in, and continued basis resting on, three judgments made by Supreme Court judges, collectively known as the Three Judges Cases. But a deviation sprang up in 2014, soon after the BJP came to power. The collegium had recommended a panel of four names, but the Union Ministry of Law unilaterally segregated one name and summarily rejected it. The government said that it wanted to bring transparency and end with corruption in the process of appointing judges and hence was going to scrap the collegium system and introduce a new method of appointing judges by a National Judicial Appointments Commission (NJAC). Accordingly, the National Judicial Appointments Commission Bill, 2014 was brought forth and passed in both houses of Parliament. The proposed NJAC was set to comprise the CJI (Chairperson), two other senior-most judges of the Supreme Court, the Union Law Minister, and two eminent persons, of them one from amongst the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or women nominated by the PM, the CJI and the Leader of Opposition or the leader of the largest party in opposition of the Lok Sabha. But the NJAC Act was turned down by the Supreme Court in 2015 saying that the judiciary cannot risk being caught in a ‘‘web of indebtedness’’ towards the government. ‘‘It is difficult to hold’’, the Supreme Court said, ‘‘that the wisdom of appointment of judges can be shared with the political-executive.’’
But the issue is raked up again. In the latest chapter of what is emerging to be a standoff between the Supreme Court Collegium and the Union government, the government reportedly has sent back 19 of the 21 pending recommendations made by the Collegium for appointment of High Court judges. A day ago, a news agency reported quoting unnamed sources that the government has asked the Supreme Court Collegium to reconsider 20 files related to the appointment of High Court judges. The government reiterated that the Collegium system was giving rise to favouritism and preventing Dalits, OBCs and the poor among the upper castes from entering the higher judiciary on the basis of merit. ‘‘The judges spend most of their time picking up judges, instead of passing judgements. The system is opaque and not accountable’’, alleged the Union Law Minister. On the other hand, the Supreme Court maintains that the Collegium is the most transparent institution, and that the existing system should not be derailed on the basis of statements of ‘‘some busybody’’. The Supreme Court also held that the government was perhaps holding back some appointments because it was ‘‘not happy’’ that the top court had struck down the National Judicial Appointments Commission. Even former CJI U U Lalit, who retired on 8 November last, told reporters that the Collegium system is perfect. ‘‘An attempt to have a different modality was not found to be correct. In fact, the court went to the extent of saying that such an attempt, even a constitutional amendment, would be a violation of the basic structure,’’ he added. On criticism that the working of the Collegium system is opaque, he said, ‘‘So long as the discussion is going on before the Collegium, it can never be transparent. Decisions which are coming out from the Collegium will definitely be transparent’’. So, the controversy is about transparency and fairness—both sides claiming to be the bona fide custodian of the same.

Court’s wrath over Corruption
Gautam Navlakha, a 73 year old human rights activist, is an accused in the Bhima Koregaon case (the case dates back to 1st January 2018, the day of the bicentenary celebrations of the Bhima Koregaon battle. The celebration was marred by violence leading to the death of one person and injuries to several others. Police investigation into the incident led to the arrest of several activists who they alleged had ‘‘Maoist links’’.) and has been in jail since April 2020. He is suffering from multiple ailments. He had moved the Supreme Court seeking transfer to house arrest on account of his medical condition. Opposing his plea, Additional Solicitor General, appearing for the National Investigation Agency (NIA), told the top court that people such as ‘‘Navlakha want to destroy the country. Their ideology is of that type. It is not that they are innocent people. They are persons involved in actual warfare,’’ he told the Court.
Granting the plea of house arrest, a Bench of Justices K M Joseph and Hrishikesh Roy observed, ‘‘Prima facie, no complaint that he misused earlier house arrest. No criminal antecedents apart from this case is against him…We would think that we should allow house arrest.’’ They then remarked, ‘‘Do you want to know who is destroying this country? People who are corrupt. Every office you go into, what happens? Who takes action against the corrupt? …We saw a video of people where people talk of crores of rupees to buy our so-called elected representatives. …Are they not doing anything against our country? The point is that you (meaning the government side) do not defend them, but they go on. They go on merrily. There are money bags which can help you get away.’’ Evidently, the Bench pointed at the raging corruption and rampant horse-trading which mark the arena of vote-based power politics in the country. While the wrongdoers go scot-free, the dissenters are accused of destroying the country.

Flipping over the pages of history
Now, the question is why this ongoing tiff? To get an insight, we need to flip over the pages of history. The Capitalist state and its political structure i.e. the parliamentary system, came into existence during the advent of capitalism by overthrowing obsolete feudal order. When capitalist state emerged, it thrived upon the concepts of bourgeois democracy, promoted democratic institutions, cherished democratic values and norms and with these, it advocated for relative independence of its three permanent organs: Executive, Legislature and Judiciary. These organs were distinct by themselves, given distinct domains of power, definite responsibilities and accountabilities. They worked on the principle of ‘separation of powers’ as the founding fathers of bourgeois democracy termed it and upheld. Such separation was visualized so that power was not concentrated with any of the wings or the organs and there was no disharmony in and overlapping or interference of their functions. At the same time the three organs of bourgeois democracy were also guided by a ‘check and balance system’ so that none becomes absolutely powerful or abuses its power.
The responsibility vested with the Judiciary was to make sure and protect due operation and application of the laws enacted by the Legislature and executed by the government and bureaucracy in a way compatible with the expressed provisions of the Constitution. The bourgeoisie at the time of its rise as a social power and time of emergence of bourgeois democracy upheld that as far as the last word of justice was concerned, people’s opinion was of supreme importance. And of all the three organs, it is the Legislature which is directly formed by the people through elections in a parliamentary democracy. So, whoever believed in democracy must also believe in the ultimate triumph of public opinion, if it were strong, united and fearless. If it were the people who had to govern the country, the will of the people could only be manifested through public opinion. That is why, a conscious continuous vigil on the part of the people was viewed to be the best safeguard of democracy. And that safeguard was to be exercised by the elected representatives in the Legislature who were empowered to frame laws. The sovereignty of parliament was viewed as contingent upon the sovereignty of the people.

Degeneration of parliamentary democracy is coeval with obsolescence of capitalist system
But capitalism also stood on exploitation of man by man. Hence equality, fairness and sense of equity could not have an abode in it. As capitalism grew from its laissez faire or stage of free competition to its present decadent moribund stage, as laissez faire developed into monopoly stage, it was marked by concentration and consolidation of economic power in the hands of a few monopolists and centralization of political power in the hands of the Executive and the state. Naturally, alongside growing pauperization of the oppressed masses, there has been a systematic erosion of the democratic system, values, norms and practices. The earlier ideals of bourgeois democracy began to crumble leaving behind virtually an empty facade. During the days of emergence of parliamentary democracy, and even a few decades back, bourgeois elections at all levels, local, regional or national, used to be marked by an ambience of healthy debates-discussions-exchanges created from conceptual-ideological campaigns launched by different participating parties. Those parties used to come out with their election manifestos elaborately presenting their views, thoughts, ideologies and programmes to the electorates for them to judge for themselves and make their choice thereupon. The electoral system in the main remained free from rigging or being tampered with. Contrarily, as everyone is aware of, elections nowadays have become a game of four powers—money-muscle-media-administration. With every passing day, the degeneration of election process is becoming more and more acute and glaring. Bourgeois-petty bourgeois parties are picking up candidates from among those elements who can intimidate people, who frighten people by their look, conduct and activities, who have antecedents of smoothly extorting people, who have proven records of repeated crime or even conviction on charges of fraudulence, multi-crore scams, even rape or murder. Election campaigns have been reduced to blood-shedding fratricidal clashes on dirty grounds of casteism-racism-religious fanaticism; where those are less prominent, the stage is occupied by armed gangs of goons acting for different contesting parties openly and unhesitatingly, unleashing a reign of terror-threat-intimidation to prevent genuine electors from taking part in the process. Even the opposition is forcibly prevented from filing nominations.
Election is designed to project and establish only such bourgeois- petty bourgeois parties in the race for power that will be servile to oppressive bourgeois class rule. The result of elections is thus becoming equivalent to drawing a print-out from a computer with data fed into already installed programmes. Obviously in such a process characterizing elections today, saner sections of people are increasingly becoming fed up with the pattern and conduction of voting exercise. With elections becoming a medley of money-media-mafia, social accountability and sense of social obligation have become virtually extinct. And the Election Commission, as mentioned above, remains an indulgent onlooker to such butchering of democracy. Moreover, as capitalism, because of its inherent laws, is becoming more and more crisis-ridden and is also hearing its death-knell, it is desperate to anyhow get an extra lease of life by subverting every canon of democracy. As a result, Legislature no more reflects people’s opinion but has become a congregation of corrupt, power-monger bourgeois politicians in servitude of the ruling monopolists. Their allegiance is not towards people but their ruthlessly exploitative masters. As against debates-discussions, mudslinging, character assassination, personal attacks and surfeit of filthy languages abound in the parliamentary sessions. So, the Legislature has lost its earlier character and virtually become a showpiece. With Legislature becoming virtually defunct and the capitalist state depending more and more on military, the three pillars now virtually consist of Executive (ministers and bureaucracy), Judiciary and Military.

India is also on the same mode
In the present days of intense crisis of capitalism, like all other capitalist countries, in the Indian capitalist state too, the ruling monopolists and massively powerful multinational corporate sharks desire to have the country entirely in their grip. They wish political parties to be nothing but subservient ancillaries to their designs and interests. They wish the governance to be run primarily and heavily to make room for them to reap maximum profit. So, they want more power; they want their political managers, the governments and the bourgeois political leaders, even the Executive to get equipped with more and more lethal powers to curb any opposition and resistance.
So, alongside corrupt politicians and ministers, the bureaucracy which is supposed to practise neutrality has also become tainted and has been acting partisan. Corruption, bribery and cut-out money have come to be known as order of the day in the administration. Leading monopolists, industrialists and even a section of the bureaucracy are often donning the headlines for corruption, nepotism and illegal transactions and what not; of course, moments later they earn reprieve in ways right or wrong. Independent Judiciary is a blot in the way of the monopolists and their subservient power-greedy bourgeois politicians. They thus look for pliant and at least ‘harmless’ judges, a committed judiciary so that they could get away with all their wrong deeds, autocracy and desperateness without being subject to any judicial scrutiny. They want to prune, even do away with its relative independence and bring it under the Executive.

Executive overstepping its role
Now as more and more political concentration is taking place in the hands of the state through its pliant government, which is a mark of fascist autocracy, the Executive is becoming increasingly powerful. On the other hand, the Judiciary also functions within the framework of capitalist system and hence, in the ultimate analysis, is bound to defend bourgeois class interest. As part of the system, it is also not remaining insulated from the maladies and aberrations of capitalist degeneration.
Yet, with all its flaws and shortcomings, the autonomy of the Judiciary, even in the relative sense of the term, is getting undermined while a section of the honest jurists is opposed to reduce the juridical process into a rubber stamp and become adjunct to the Executive. So they are raising their voice against the Executive intervening in their functioning. The Collegium system of appointment of judges was coming in the way. And so is this attempt to scrap it in favour of a commission under full control of the Executive. With the BJP in power with absolute majority, the ruling class, the monopolists and the corporate are provided with a fine opportunity to carry through their design.
PM Narendra Modi is being projected as the supreme leader of the BJP and the country, for he is regarded by the ruling class as a strong administrator to serve their class interest, fit to curb any opposition, or resistance to their designs of plundering the country at their sweet will, cunning enough to drive deadly wedges into the unity of people on flimsy grounds. Relying on the government led by such a helmsman a fresh determined and cleverly planned move is mooted to curb the Judiciary and vest some absolute power with the Executive militating against the very concept of ‘separation of powers’.
Similarly, the Judiciary is peeved at the systematic dismantling of the autonomous institutions and attempt to bring them under direct command of the Executive. Hence, the Judiciary has sought to bring the procedure of selection of Election Commissioner under the scanner and decrying appointment of ‘yes-men’ in the key administrative positions tweaking rules and procedures and is not hesitating to raise fingers at corrupt politicians and bureaucrats, even accusing them of destroying the country. Also, it is to be noted that while the whole political-administration system has become so rotten as to be despised by the countrymen, some content of democratic functioning and fair dealing is still existent among the Judiciary.
The countrymen who have no faith in the governments irrespective of hue and power-greedy political leaders, do rely to a great extent on the Judiciary to get justice. So, a good number of jurists who have not sold their conscience to the ruling dispensation have been trying to preserve the sanctity of the juridical process even by opting to take on the powerful Executive.

Organized people’s power can alone be the deterrent
Evidently, no political party other than our Party seems to be keen in making people aware of the inherent truth behind the Executive-Judiciary conflicts as well as the ominous consequence of the motivated attempt of the Executive to subvert judicial autonomy. Even with all limitations, the existing collegium system where the Executive is completely frozen out of the process of judicial appointments, and the CJI is considered to be the surest and safest bet for preservation of the relative independence of the Judiciary, need to be viewed as a check against unwarranted infringement of the Executive upon the Judiciary. Though the Legislature still have the power of impeaching any judge (could be viewed as a kind of check and balance), formally there is no scope of interference by the Executive in appointment of judges. The Executive overreach in the form of formal intervention in judicial appointments casts omen of accelerated effort towards establishing all-out fascism.
Right-thinking democratic-minded people need to take serious note of these dangerous trends. They need to realize that they would not find any of the mainstream vote-based political parties by their side to seriously fight such fascistic advances. On the contrary, the need of the hour is to develop strong public opinion and united democratic movement to ensure that till the time capitalism, the root of evils, is overthrown by revolution after fulfilment of necessary conditions, whatever little of democratic practices, codes and norms are still existing do not get eroded. And that there is no infringement of the Executive on judicial autonomy, that the autonomous institutions like the Election Commission do not turn out to be lackeys of the ruling party and a rein is put on the criminalized politics of engineering defections with lure of lucre and power thereby betraying the efficacy of people’s choice of their representative through election.
It will be a height of folly to solely depend on the court for realization of demands of people without building up powerful movements to thwart the pernicious moves of the bourgeois central government in particular and ruling parties in general. The SUCI (C) as the revolutionary Party of the country is constantly striving to make people conscious of such dangers and guide them along the right track based on Marxism-Leninism-Shibdas Ghosh Thought, the highest ideology of the time. It is relentlessly trying to build class and mass struggles of which this fight against emerging bourgeois constitutional dictatorship is an inalienable part. Hence the Party appeals to people to take serious note of the developments and rise to the occasion.
(Source: Indian Express-18-08-22, 14-11-22, NDTV-09-11-22, 24-11-22, ABP 14-11-22, India TV News 23-11-22, Business Standard 23-11-22, The Wire 24-11-2230-11-22
Times of India 30-11-22)

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