For quite sometimes, a tussel is going on between the Judiciary and the Government, better say Executive, over jurisdiction of the Court and appointment of the judges. While a section of the judges including many retired judges are firmly in favour of judicial autonomy, strictly abiding by the constitutional norms and non-interference of the Executive in judicial functioning including appointment procedure of the judges, the BJP government, it seems, is bent upon turning the Judiciary as an appendage to it so that no verdict goes against any step or decision of the government, howsoever autocratic, undemocratic, illegal and illegitimate it might be. As the features of fascization like more and more concentration of economic-political power in the hands of the capitalist-imperialist state through Executive, already turned into a pliant servitor of the ruling monopolists, are surfacing more and more in all imperialist-capitalist countries including India, attempts to subvert judicial autonomy by flouting the basics of bourgeois democracy are also pronouncedly manifest. In last Proletarian Era (15 March 2023), we have discussed this phenomenon elaborately.
But as a section of democratic-minded judges are openly airing their views protesting against the undue interference of the government in juridical process and stressing on preserving as well as upholding judicial autonomy, the government has finally resorted to intimidatory measures to stifle their voice. Kiran Rijju, Union Law Minister, has gone to the extent of saying that there were ‘‘three or four’’ retired judges who are part of an ‘‘anti-India’’ gang, adding that anybody who has worked against the country ‘‘will have to pay a price’’. ‘‘It is a few of the retired judges, few —maybe three or four—few of those activists, part of that anti-India gang, these people are trying to make Indian judiciary play role of opposition party. Some people even go to court and say that please rein in the government, please change the policy of the government…. Judiciary is neutral, judges are not part of any group of political affiliation. How can these people openly say that [the] Indian judiciary must take the [government] head on? …Actions will be taken, actions are being taken as per law. The agencies will take action as per the provisions of the law. Nobody will escape,’’ he remarked in a recent seminar on ‘accountability of the judges’. It is evident that the government would not hesitate to take punitive action and coercive measures even against the honourable judges who dare to speak against it and seek to defend relative autonomy of the Judiciary and justice delivery system.
When democracy is subverted, it is the institutional reliability of the judicial system that is dismantled first. Whenever judicial independence is undermined, tyranny, chaos and then anarchy, in that order, are its inevitable corollaries. A grand sweep of history bears testimony to these maxims. If one rewinds to Hitlerite regime, it would be seen that before the Nazis first appropriated dominance in 1933, Adolf Hitler did not wax eloquent against the judiciary. This was due to the fact that the German legal system was both Federal in character and deeply embedded in the classical Western legal tradition of an autonomous Judiciary both at the base and at its pinnacle. The independence of the Judiciary was an anathema to the Nazis.
Even the fig leaf of feigned impartiality was ripped to shreds when Hitler addressed the judiciary in a speech in the Reichstag on 26 April 1942. Hitler said: ‘‘I expect the German legal profession to understand that the nation is not here for them but they are here for the nation… From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.’’ Judges in Nazi Germany were then instructed that in the event of any conflict between the Nazi Party and Law, the Nazi Party should always succeed as their objectives surmounted any notions of fair play. Mussolini conceived and executed the template of a totalitarian state. The three branches of power namely the Executive, Legislature and the Judiciary were fused into one in the years of Mussolini’s rule.
When the object of attack refuses to budge, jibes rise in pitch, as is with the Union Law minister who, exhibiting rare impropriety, is trying to turn the Judiciary into the opposition. Rebutting his digs, Justice Rekha Sharma, former judge of Delhi High Court, said that this unnecessary aggression is tantamount to threat and an attempt to gag dissent. Why should retired judges be reined in, she questioned. We are living in a democratic country having every right to speak, she said.
An independent Judiciary, to which access is available to all citizens, is an essential ingredient of bourgeois democracy. Judicial independence ensures, in particular, that judges are free to conclude that actions taken, or decisions made by the Govt. (or even by others) are in breach of the law, and that they are in particular in breach of individual’s rights, including of course their fundamental, or human, rights and to decide on the appropriate remedy. Hence, no democratic minded citizen and jurist can afford to lie low when such an attack on Judiciary is being mounted and must raise united voice of firm protest against the despotism of the BJP government.