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Separation Of Powers Is A beautiful Theory: Jasti Chelameswar

The executive enacts laws through the legislature and furnishes the infrastructure to the judiciary

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Separation Of Powers Is A beautiful Theory: Jasti Chelameswar
Separation Of Powers Is A beautiful Theory: Jasti Chelameswar. Flickr
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That the executive and the judiciary are insulated from each other is a beautiful theory which does not work in practice if iconoclast judge Jasti Chelameswar is to be believed. He may be right because democracy, too, is a beautiful theory which fails in practice when judges and politicians mingle.

Chelameswar reiterated on June 23 that nothing had changed after the four judges’ press conference on January 12, which was the proverbial last straw after the allegedly unacceptable functioning of the Supreme Court registry in case allotment. It is true that the Chief Justice of India (CJI) is the master of the roster but sensitive cases must be allotted with the public interest uppermost rather than the subjective wisdom of the CJI in selecting benches to decide certain cases.

Chelameswar was responsible for ensuring that the resolutions passed by the Supreme Court collegium are uploaded for the country to see and indirectly sparking a controversy after his January 12 press conference which led to a failed impeachment motion against Chief Justice of India (CJI) Dipak Misra by the Congress. Nevertheless, Dipak Misra is the first CJI to  face an impeachment motion.

The point here is that every law student learns the judiciary is independent of the executive although the judges’ salaries are paid by the state exchequer. However, this is a theoretical concept because the names of lawyers who will be sworn in as judges are sent by the chief justice of the parent high court to the chief minister and governor for vetting by the Intelligence Bureau before the file reaches the office of the CJI.

After all, the state provides judges with their housing, cars and other perks which are all withdrawn after retirement. Most judges accept post-retirement benefits such as chairing commissions or heading arbitration panels which Chelameswar and Kurien Joseph have refused.

Few know that when a judge is sworn in at the Raj Bhavan of any state, the swearing-in ceremony is attended by the chief minister, and sometimes, senior cabinet ministers. The governor administers the oath of office to the incumbent judge who then makes an acceptance speech. Hence, insulating the judiciary from the executive is a chimera.

The executive enacts laws through the legislature and furnishes the infrastructure to the judiciary. Hence, although the judiciary interprets the laws, it will never cross the laxman rekha of directly striking down partisan laws unless there is a clear violation of fundamental rights. This is because the judiciary is accountable only to itself whereas the executive and legislature is directly responsible to the people for its partisan policies.

Hence, the fact that at least a few judges in the past were known to be close to the executive is beyond dispute because the late CJI A N Ray was allegedly known to have even phoned Prime Minister Indira Gandhi to elicit her views on national issues placed before him. Indira Gandhi superseded Justices J M Shelat, A N Grover and K S Hegde to appoint Ray as the CJI. All three judges resigned in protest and Hegde went on to join the executive as speaker of the Lok Sabha.

Indira Gandhi’s Union law minister in 1980, Punjala Shiv Shankar, was a former high court judge from Andhra Pradesh. He issued a controversial circular dated March 18, 1981, to the governors of all states asking them to seek the consent of additional judges (on probation) to be transferred to any high court outside their state. He allegedly issued this circular without consulting the then CJI Y V Chandrachud. The transfer policy, presently followed by the Indian judiciary, was the result of this circular which was justified as eradicating partisanship, casteism and promoting national integration within the judiciary.

In 2010, a controversy broke out when Justice Hemant Gokhale, who was the Madras high court chief justice and later elevated to the Supreme Court, pointed out that the then CJI K G Balakrishnan had apparently lied when he said he did not receive a letter from Justice R Reghupathi of the Madras high court dated July 2, 2009 that a lawyer R K Chandramohan had tried to influence his granting of bail to a DMK murder accused by using the name of former Union telecom minister A Raja.

This DMK lawyer-politician was later acquitted by the courts of causing a loss of Rs 1.76 crore to the country for awarding spectrum at throwaway prices to telecom operators in exchange for bribes. His accomplices, Kanimozhi and Dayanidhi Maran were acquitted last year by a CBI special court.

Supreme Court judge Justice Jasti #Chelameswar and High Court Judge Justice Devan Ramachandran taking a ride on Kochi metro
Supreme Court judge Justice Jasti #Chelameswar and High Court Judge Justice Devan Ramachandran taking a ride on Kochi metro. flickr

Significantly, Prime Minister Narendra Modi flew to Chennai and invited the ailing DMK chief, Karunanidhi to occupy the PM’s official residence for medical treatment. Finally, the fact that Union law minister Ravi Shankar Prasad, a senior advocate of the apex court himself, stated at a press conference that when CJI Dipak Misra recommends the name of the seniormost judge as his successor, the government would consider it. “…But the intentions of the government cannot be questioned,” sounds sinister.

Also read: The Trailer of Rajinikanth’s new Film ‘Kaala’ Shows He Is Serious About Politics

These statements suggest Justice Chelameswar’s contention of a bon homie between the judiciary and the executive endangering democracy may be true. This may be why former CJI T S Thakur wept like a child before Narendra Modi in 2016 and why the Bar Council of India has attacked Justice Chelameswar for pointing out that democracy had become a beautiful theory within India. (IANS)

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Then It Was Emergency Now It Is Democracy

The Emergency happened 43 years ago and both, Mrs Gandhi and the Congress, lost power because of it in 1977

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Then It Was Emergency Now It Is Democracy
Then It Was Emergency Now It Is Democracy. Pixabay

An all-out war of words broke out last week between the BJP and the Congress on the 1975 Emergency. Observing June 26 as a ‘black day’, several BJP leaders targeted the Congress at events held across the country to highlight the Emergency’s excesses. Leading the charge with a sharp attack on the Congress was Prime Minister Narendra Modi. Addressing BJP workers in Mumbai last Tuesday, the prime minster said the country still refers to June 26 as a ‘dark period during which every institution was subverted and an atmosphere of fear was created’.

Without naming the Nehru-Gandhi family, Modi said the Constitution was misused at the behest of one family. He further went on to say that the mentality of the family had not changed even now after 43 years of the Emergency. ‘Whenever the family feared loss of power, it keeps shouting that the country is in crisis,’ the prime minister added. Expectedly, the Congress hit back with equally sharp criticism of the Modi government, equating Modi to Aurangzeb. It alleged that the prime minister was even crueller than the Mughal emperor as Modi has “enslaved democracy” in the country for the past 49 months with an “undeclared emergency”.

The 21-month period from 1975 to 1977, when the then prime minister Indira Gandhi had declared Emergency, was indeed a dark chapter in India’s democratic history. This was the third national Emergency – the first one was in 1962 when China invaded India and the second was in 1971 during the war with Pakistan – and the only one to be declared citing the “internal disturbances”.  During the 1975 Emergency, opposition leaders were arrested, civil rights curbed, elections postponed, anti-government protests crushed and press censored. It shook India to its core as the freedom to liberty, dissent and express ceased to exist. All this is well-known and in public domain. Therefore, what was so special about the 43rd anniversary of Emergency that the BJP observed as ‘black day’?

Bringing back memories of the Emergency days was clearly aimed at striking at the Congress’s weak spot. It was also meant to neutralise Congress president Rahul Gandhi’s frequent ‘murder of democracy’ gibes directed at the Modi government. This was not entirely unexpected in a pre-election year; neither was the Congress’s equally sharp response by likening Modi to Aurangzeb. As 2019 general elections approach, not only the political exchange between the two parties will gather momentum, but over the next 10 months, election-driven rhetoric, name-calling, inane allegations and historical debates will increase. Reminding Congress of the Emergency is just the beginning.

Congress on Friday promised to create one crore jobs across the southern state
Congress- wikimedia commons

While terming the Emergency as an ‘aberration’, the Congress has never expressed any remorse about the dark chapter in its history or condemned it. Claiming that during Emergency, Mrs Gandhi targeted the rich, black marketers, hoarders and zamindars is no justification for curbing civil liberties and press freedom and neutralising the opposition. The hesitation to admit Emergency as a major mistake has denied the Congress an opportunity to reassert its commitment to democratic values, though it was the primary builder of democracy in India after independence.

The Emergency happened 43 years ago and both, Mrs Gandhi and the Congress, lost power because of it in 1977. Since then, the Congress has ruled at the Centre several times without resorting to emergency measures. On the contrary, it has shown its commitment to democratic order and liberal values far better than the current BJP-led government. The Emergency of 1975 and the violations of civil liberties and press freedom were all real. But its parallels can be drawn with the contemporary situation, which is marked by erosion of institutional independence and integrity, rising intolerance and increasing mob violence which stems from the ideological support of the ruling party.

The right-wing assaults on constitutional institution and individuals’ democratic rights are for real, though there is no Emergency in force in India today. While conventional opposition leaders and parties have the liberty to become more than conventional Opposition and there is also the rising wave of resistance to right-wing assaults on individual rights and institutions, it is also true that there are whiffs of Emergency sentiments in the air and the strains of the Emergency doctrine and pulsations of fear are quite obvious. The Congress is not entirely off the mark when it accuses the Modi government of ‘undeclared emergency’ as the freedom of the media, people’s freedom of expression and their right to live without fear have come under new kinds of threats.

There is no overt press censorship but the government has tried to muzzle and manipulate the media through various means. A section of the media has either caved in to the fear of administrative power or fallen for the lure of money-power. Apart from the media, there have been sustained attempts to weaken and misuse other constitutional and non-constitutional institutions, including the judiciary. Interestingly, all this is happening when the BJP is in power and questioning the Congress’s commitment to the principles and practice of democracy, while the BJP has diluted its own commitment to the philosophy of parliamentary democracy, liberal values and press freedom.

This is quite surprising because while the taint of Emergency continues to haunt the Congress, the BJP, despite its proud status of a party whose leaders were at the forefront of the struggle against the Emergency 43 years ago, is not deterred to misuse the levers of power against its political opponents, ‘difficult’ sections of the media, and independent or ‘inconvenient’ voices that question the government on various issues. With scant regard for critical debate and plurality of views under the current ruling dispensation, what we are seeing now is some kind of a role reversal. Mrs Gandhi subverted institutions to retain power. The BJP is trying to do the same by weakening the same institutions.

Also read: India sends Emergency Fuel Supplies to Sri Lanka

The Emergency should serve as a warning to political parties: threats to democracy and people’s constitutional rights – either directly or indirectly – create resentment and negative public opinion against government. The Emergency created a unity among opposition parties that never existed before and became the cause of Mrs Gandhi’s defeat. It is too early to say whether the Modi government’s attempts to misuse democratic institutions for his party’s narrow interests and the right wing attacks on institutions and rights of citizens will help create similar kind of opposition unity, which will determine the outcome of 2019 elections. (IANS)