“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
Humpty’s Dumpty’s words from Lewis Carroll’s Through the Looking Glass ring startlingly true in the context of the recent Supreme Court ruling in which it has ruled that the Chief Justice of India must be part of the panel which must be consulted by the President while appointing the election commissioners. Article 32 of the Constitution of India makes it very clear in its title as well as in each of the two clauses which deal with the role of the Supreme Court that the article is applicable only to the “rights conferred by this Part,” that is, Part III of the Constitution which deals with the fundamental rights of the people of India.
Yet, the Supreme Court has applied Article 32 to overturn Article 324 which is in Part XV of the Constitution and deals with elections and the procedural aspects of the election commission. Additionally, using one section of the Constitution to destroy another section of the Constitution instead of merely checking the validity of a law based on whether it is in violation of the Constitution makes a complete mockery of the Constitution. Admittedly, this process began several decades ago in Golaknath vs. State of Punjab, a case heard by the Supreme Court, but the current ruling too attempts to overturn certain articles of the Constitution and rewrite others in order to grant the Supreme Court more powers. These include the powers of the President, the Prime Minister, the Parliament, and the Chief Election Commissioner. Any change to the Constitution of India can properly be made only through an amendment passed by the Parliament (and a majority of state legislatures where such conditions apply), and not by Supreme Court judges who decide that they want the powers conferred by the Constitution to the other branches of the government reassigned to themselves.
The Supreme Court has applied Article 32 to overturn Article 324 which is in Part XV of the Constitution and deals with elections and the procedural aspects of the Election Commission
The ruling gives new meanings to the terms “Fundamental Rights” and “equality” when it effectively insists that these terms entitle the Chief Justice of India to become the co-President, the co-Prime Minister, and the co-Chief Election Commissioner, while also wielding the powers of the Parliament of India, all at the same time! The Supreme Court has thus outdone even the Supreme Court of Pakistan which is known for being a power center that routinely makes moves to grab power and finds itself in a power struggle with the Pakistani politicians, the Pakistani army, and the Inter Services Intelligence. If this ruling is not opposed, there is a real danger that India’s Supreme Court will become a cross between Pakistan and Humpty Dumpty.
The Supreme Court has torn down one Article after another while assigning unlimited powers to itself and has taken the words “complete justice” in Article 142 out of context to make the extraordinary claim that these words give it absolute power (it uses the words “plenary power”) to come up with any ruling. In reality, Article 142 pertains only to lawsuits which are pending before the courts and exists to ensure that these lawsuits do not come to a standstill on account of uncooperative parties. This Article allows the Supreme Court to pass orders that enforce the attendance of any person or aid in the discovery and production of documents to advance a case already being heard. It is not a license for the Supreme Court to go beyond its jurisdiction and encroach on the powers of the other branches of the government.
Striking down Article 368
In the past, the Supreme Court has even neutered Article 368 which confers on the Parliament the power to amend the Constitution and lays down the procedure to make such amendments. Article 368 states in no uncertain terms, “No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.” To ensure the supremacy of democratic processes and prevent interference from the Supreme Court, it even goes on to state, “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”
Article 329 of the Constitution of India clearly sets the boundaries of the judiciary while making the Election Commission a body that is independent of the courts
While this part was added after the ruling in His Holiness KesavanandaBharatiSripadagalvaru vs. State of Kerala and Another in which the Supreme Court imposed an arbitrary limitation on the Parliament to amend the Constitution, even the original wording of the article provided for the legislative branch to modify the powers of the Supreme Court and not the other way round. Thus, it is the prerogative of the Parliament to amend the Constitution in whatever manner it sees fit, and the only limitations placed on the powers of the Parliament are those placed by the Constitution itself and not by the Supreme Court. Any ruling by the Supreme Court abridging the powers of the Parliament or transferring the powers of other branches of the Government to itself is not only illegitimate but also amounts to the Supreme Court exceeding its authority and is thus a serious breach of the oath of office taken by the judges. The 2015 Supreme Court ruling striking down the ninety-ninth amendment of the Indian Constitution which authorized the formation of the National Judicial Appointments Commission (NJAC) falls in this category. The flimsy excuse that the Supreme Court’s independence would be infringed by the Constitutional Amendment should have been ignored as judicial independence does not mean absolute power for the courts to run the country.
Article 329 sets boundaries for judiciary
Article 329 of the Constitution of India clearly sets the boundaries of the judiciary while making the Election Commission a body that is independent of the courts when it states that the actions of the Election Commission listed in Articles 327 and 328 “shall not be called in question in any court” and that “no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.”
Article 329 of the Constitution of India clearly sets the boundaries of the judiciary while making the Election Commission a body that is independent of the courts
Apart from interfering in the functioning of the President of India and the Prime Minister of India, the ruling also wrongly claims that an Election Commissioner cannot be appointed for a period of less than six years without violating the law. In reality, the Election Commission Act of 1991 which governs the appointment of the election commissioners leaves no room for confusion as it states that “[t]he Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office” and this is immediately followed by the words, “Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age.”
Kingdom within a kingdom
When the ruling draws upon the Constituent Assembly debates surrounding the Articles related to the appointment of the Election Commissioners which discussed various angles including the Election Commission, the right of the government to be in charge of conducting elections, the supremacy of the Parliament, and the dangers of the Election Commission becoming a “kingdom within a kingdom” and a “Super-Government,” it does a remarkably good job of summarising the debates. On the words “subject to the provisions of any law to be made by Parliament” in the relevant article, it rightly concludes that Supreme Court “would not go, so far as to hold that Parliament was under a compellable duty” to make a law regarding the appointment of Election Commissioners.
Yet, in the latter part of the same sentence, it contradicts itself and gives a new meaning by injecting the word ‘must’ when it states that the “Constituent Assembly clearly intended that Parliament must make a law.” The only intention of the Constituent Assembly was that the Parliament have the right to make a law and ensure that it could step in if things got out of hand. That is not an obligation to make a law. The wording in the original text of the Constitution too did not contemplate any role for the judiciary in the appointment process of the election commissioners. However, any law that is made now will allow the Supreme Court to use the excuse of determining whether the law was followed to insert itself into the appointment process and exert a veto power by overturning any appointment.
Overstepping the boundaries
The ruling also uses some strange arguments such as pointing out that the Supreme Court is already a part of the process to appoint the Director of the Central Bureau of Investigation (CBI), but that is no justification to grant the Supreme Court additional powers to make appointments to other Constitutional bodies. In fact, the process to appoint the CBI Director too needs to be revisited and the Chief Justice of India must be stripped of the power to participate in the appointment process of the CBI Director as it creates a conflict of interest with the prosecutor and the judge ending up as representatives of the same interests. The Supreme Court also can never be a neutral arbiter in disputes arising from appointment processes in which its own Chief Justice has been a participant.
During the hearings that led to this ruling, one of the judges, KM Joseph, observed, “You see apart from competence, what is important is you need someone with character, who does not allow himself to be bulldozed. So the point is who will appoint this person?” This is a ridiculous argument for several reasons. First, there is no such requirement about needing “someone with character” in the Constitution. Secondly, the judge implicitly certifies himself and other judges as the only people with good character, and thirdly, the principles of separation of powers and checks and balances are based precisely on the presumption that there will be people in every branch who are corrupt, and the method to overcome this problem is to not concentrate power in any one branch. The judicial branch clearly must not be involved in the decision-making roles of the government if such separation of powers is to be maintained. Besides, it must be noted that the difference between corrupt judges and corrupt politicians is that the latter at least have the approval of the people of India. That approval is the most important aspect of the system of checks and balances as it is directly rooted in the democratic process of voting. It also creates incentives for the corrupt politicians to strive to maintain their approval by behaving in accordance with the law and the Constitution. There is no such incentive in the case of corrupt judges who can then become agents of foreign powers that wish to destabilise India.
The ruling also contains some shocking language that displays utter disdain for democratic processes and the people of India when it claims that the “majoritarian (sic) forces which may be compatible with a democracy, must be counter balanced.” Majoritarianism (sic) is the term used by the opponents of democracy in India who label themselves members of the “civil society.” In reality, the so-called “civil society” consists of either card carrying Communists or closet fellow travelers who vote for either the AamAadmi Party or the Congress Party, and they routinely put White Europe and White America on a pedestal while diminishing, and even insulting, all other cultures and governments of the world including those of India.
Among the current Supreme Court judges, a number of them are either the children or close relatives of former Supreme Court judges or others who were in positions of power, or those who had connections to the judiciary. Even among the five judges who were part of the bench that issued the ruling on the appointment of election commissioners, KM Joseph is the son of K.K. Mathew who was a Supreme Court judge, C.T. Ravikumar’s father was a bench clerk while his wife practices in the Kerala High Court, while Ajay Rastogi’s father was an eminent lawyer in the Rajasthan High Court.
The current Chief Justice of India, D.Y. Chandrachud, too is the son of a former Chief Justice of India, Y.V. Chandrachud. Yet another judge, B.V. Nagarathna, who recently opined that the Indian government had no right to initiate communications with the Reserve Bank of India (RBI) is the daughter of E.S. Venkataramiah who was a Supreme Court judge. Her opinion leads us to the absurd conclusion that former Prime Minister Manmohan Singh’s request to the RBI to lower interest rates was impermissible as it infringed on the RBI’s independence. Curiously, the court has never questioned RBI’s independence in the context of the RBI communicating with foreign entities such as the International Monetary Fund (IMF), or in the context of former RBI Governor Raghuram Rajan having served as the Chief Economist of the IMF, or Raghuram Rajan retaining his Professorship at a foreign university even as he was the RBI’s Governor.
The Members of both the Lok Sabha and Rajya Sabha including those from the opposition parties must come together and assert the rights conferred on them by the Constitution, oppose this ruling and every other ruling in which the judges have injected themselves based on their tastes after ignoring the Constitutional restrictions which apply to them, affirm that it is the prerogative of the Parliament to make amendments to the Constitution and decide whether or not any law needs to be passed, restore the separation of powers by stripping the judiciary of the various powers outside its purview that it has usurped over the decades, and reinstate the ninety-ninth Amendment of the Constitution.
(Views are personal)
Comments