Is Indian Judiciary Trail Blazing the Path Charted by Pakistan Army ?
13 Mar 2023 13:00:01
The Indian Constitution written in 1950 when population was 35 Cr and economy was Rs 2.7 Lac Cr , holds good even today when population is 140 Cr and economy at $ 4 Trillion.The reason for this is the dynamic nature of our constitution allowing it to amend based on changing aspirations of our people and the clear cut distribution of responsibility between the three pillars of Legislature, Executive and Judiciary.
Barring few interruptions and exceptions these three Pillars have ensured that they do not transgress in to each other’s domain. Also the Indian electorate ensured that the Legislative interference with “Executive” was checked when it was exceeding limits. This system ensured a dynamic equilibrium in governance of India.
Pakistan was created based on the hyped fear psychosis of Muslims .This feeling of insecurity gave a special status to Pakistan Army as the ultimate guardians of Pakistan. Notwithstanding this the first constitution of Pakistan was like the Indian Constitution based on similar three pillars of governance. However immediately after Mr. Jinnah’s death, an intense power struggle started between the Legislature (Sunni Muslim Politicians) and the Executive (Kadian Muslims educated in Aligarh Muslim University) and the administration became defunct and started collapsing. This gave the Pakistan Army an opportunity to intervene and the Pak Army under Fd Marshal Ayub Khan grabbed the power in 1958.
Taking over of country by Pak Army which basically consisted of Punjabi Sunni Muslims satisfied the Legislature’s constituency. Together they ensured that the Kadiyan dominated Administration was brought under total control of Punjabi Sunni Muslims and the Kadiyan’s were declared Non- Muslims. The Judiciary was generally neutral in this and played safe by devising suitable doctrines to support Military take over.
Like Mr. Jinnah, Mr. ZulfikarAli Bhutto was equally ambitious and was determined to rule Pakistan. For this his major obstacle was Pak Army which he shrewdly humiliated and neutralized by making it fight two wars against India and at the cost of breaking up of Pakistan in 1971. After becomimg the Head of the state, he drafted a new constitution and put stringent measures like Death Penalty for Military take over. However it back fired on him and his own prodigy Gen Zia hanged him in a murder case and in 1977 the military rule was back once again. The Pak Judiciary was a moot spectator and silent participator in this.
With this the Pak Army achieved absolute power in Pakistan where it had all the authority but no responsibility, except providing security by creating the fear psychosis against India. The International situation at that time ensured that Pak Military gets sufficient funds to remain in control of Pakistan and ensured its unflinching loyalty against Soviet Forces in Afghanistan.
After the death of Gen Zia and withdrawal of Soviet Union from Afghanistan, NATO interests in Pakistan started reducing which gave boost to Legislative Forces (Politicians) and they came to power with open support of Pak Army. However this was short lived and again Gen Musharraf took over reins . The 9/11 terrorist attack came as a big blessings for Pak Army as they remained in good books of US alliance which ensured continued dollar inflow.
The aim of bringing these details about Pak Army is to highlight the fact, that an organization which was most respected in the country and which was seen as last pillar of public faith, has slowly exploited its unassailable position, with the connivance of Western Countries to nearly ruin all the systems and establishments in Pakistan and has brought the country on the brink of disaster.
With this, we now see the way our Judiciary is moving in a similar fashion and one by one encroaching upon domains of others. They are heading towards acquiring all the authority but no responsibility.
Post-independence for 20 years there was only one party (Congress) in power without any worthwhile challenge. So the legislature was working without any competition to its hegemony. In the Executive, the old ICS lobby was still in control and the momentum of previous government was continuing without any hindrance. In Judiciary also similar system was continuing. By showing healthy respect for each other they ensured that there was no conflict of interest.
After 1967 the things started changing. In general elections Congress got a jolt and also lost power in some states. This made Congress to start influencing Executive for progressing its political agenda.
After Mrs Gandhi became PM, being extremely ambitious, and hungry for power, she started using all the resources under her command for furtherance of her plans, irrespective of right or wrong. It is at this time the Law Ministry started exerting undue influence in selection and appointment of Judges.
1967 was also the time when the SC gave judgement in “Golakhnath Case” whereby it totally blocked any type of constitutional amendment which can affect fundamental rights. So a conflict started brewing between the legislature and judiciary. In 1971 Mrs. Indira Gandhi led India to a resounding victory over Pakistan and was at the height of her popularity with a thumping victory in the Parliament. Despite of this, the famous judgement in “Keshavanand Bharti Case”, the Supreme Court permitted only part amendment of the constitution without affecting the basic structure of the Constitution (thereby limiting Parliament’s Power of Law making. In addition the Judiciary acquired full control over law makers by declaring themselves the sole interpreter of the Constitution.)
It is perhaps at this stage the Judiciary started slowly expanding its control in other spheres. The first major casualty of judicial activism was Mrs. Indira Gandhi herself. In the famous Rajnarayan case Mrs Gandhi as PM was excessively punished ( she had only vicarious liability) by banning her for six years from fighting elections. The net result of this activism was PROCLAMATION OF EMERGENCY. During Emergency the judiciary kept low profile and submitted itself to the will of Mrs. Gandhi in enforcing the emergency.
On lifting of emergency certain amendments made in 42nd Amendment of constitution were found against the basic structure of the constitution and were repelled by the courts. Also Judiciary submitted itself to bureaucratic control in Transfer and appointment of Judges by giving favourable judgement “Judges Transfer Case of 1981”.
From 1981 till 1993 it was the turn of Legislature (Politicians) to meddle Judicial functioning by trying to subvert the Judiciary through favouritism. However in 1993, the Judiciary bounced back through “Second Judges Case” and adopted Collegium System by interpreting the word “Consultation as Concurrence” and taking complete control over Selection, Promotion and Transfers of Judges of the High Courts and Supreme Courts.
From here started the journey of unbridled power of the Judiciary. It involved Judges Selecting Judges, Judges promoting Judges, Judges transferring Judges, Judge making a binding recommendation of his successor’s name. It also paved the way for all judges of Supreme Court to give virtually any judgment as they were the SOLE INTERPRETER OF THE CONSTITUTION.
There is the famous saying that “Power corrupts but Absolute Power Corrupts Absolutely”. This unbridled hoarding of unchecked power by the judiciary is being justified by generating fear psychosis among Indian people about the need for Absolute Judicial independence. Based on this ‘security’ approach the revealing signs earlier shown by Pakistan army in slowly acquiring the powers and ruining their country are now seen in India.
Revealing Signs
Opaque System of Selection. The first and foremost step in power acquisition is to create a system of Selection that is a Closed Domain of few ( Like Politburo) who do not wish to be accountable to anybody outside their Closed Domain. This ensures total protection of its authority with No Possibility of future back-lash.
Different Rules for Self and Others
(a). Annual Confidential Reports. Selection and Promotion of Judges is a closed system without any accountability or openness towards the candidates under consideration. While this is considered essential in Judiciary, the same Judiciary has scrapped the system of Confidential Report in Bureaucracy thereby creating a very bad system of Governance.
(b ). Asset Declaration. It is mandatory for candidates to declare their assets (Including that of their near relations) before contesting Elections. These declarations are in Public Domain. But there is NO COMPULSION for HC and SC Judges to declare theirs and their near relatives Assets in Public Domain before taking Oath of Office and then on Annual Basis.
(c ). Women Participation. It is an accepted fact that the representation of Women in higher judiciary is at much below level than expected. However instead of improving it, the Judiciary prevailed over Armed Forces to accept women for Permanent Commission and in all Arms and Services. While equality of opportunity irrespective of gender is the desired goal everywhere, however specific to the defence forces, this has an adverse impact at unit level due to the physical nature of the job.
(d ). No Punitive Action. Many a times it is seen that random judgments are given without any basis and only way to get rid of them is to go to higher court. While Higher Courts do take cognizance of such random judgements, “NO PUNISHMENT IS GIVEN TO THE JUDGE PASSING SUCH RANDOM JUDGEMENT DESPITE OF IT BEING BROUGHT TO THEIR NOTICE BY THE LAWYERS. Mere strictures are passed which do not have much deterrent value.
(e ). No Cooling Period. All Govt employees are barred from taking any employment post retirement for a given period of time which is called as cooling period. There is NO such ban on Judiciary.
(f ). Censorship on Media. By wielding the sword of contempt, the media is kept under full control to ensure that there is NO ADVERSE REPORTING.
Pleasing the Western Countries Specially in Europe and USA. A number of Western Countries have a panchant to propagate some idealistic, utopian and “holier than thou” values to their formar colonies. They create NGOs for propogating these through International Seminars and invite a number of serving Supreme/ High Court judges as Honorary Speakers ( All expenses covered with Honorariums). By this they earn a sense of gratitude which influences the judgements back home. In order to exibit their modern HR values ,some judges devise new doctrines for giving random judgements. That’s how Rohangyas and Bangla Deshi intruders are protected from extradiction and are allowed to proliferate.
Post Retirement Perks and Employment. A new trend is now emerging where in SCs and HCs are devising various means to facilitate legal intervention in administration of cash rich semi-public bodies e.g. BCCI and now even SEBI. In addition some HC Judges have started hearing Su Motto Appeals to grant themselves “Z Security Risk status” post retirement. Some of such blatant and berserk declarations were stayed by Hon’ble SC after lot of hue and cry, but those involved in such assertions were NOT punished.
Financial Cost Effect of Judgement. Cumulative Financial effect of a judgement is neither taught in Jurisprudence nor is factored in any Judgement. This results in some judgements being given without any thought of its effect on the Exchequer which is tax payer’s money. It is like “Robbing Peter to Pay Paul”. In a recent Judgement the Delhi HC declared that the ‘Central Police Forces’ are same as the ‘Armed Forces’ and hence entitle for ‘Old Pension Scheme’. Do ‘Mi Lords’ understand the financial effect of this and that too without any knowledge about difference between Armed Forces and Central Police Organizations. Anothet famous judgement of 1976 vintage suddenly declared all Class 3 ( Group C) employees as ‘Industrial Labour’ and made them entitle for anuual Bonus.
Non State Players (NSP). For providing post retirement employment and keep Local Govts under check a tendency is seen to create some “Non State Players” i.e. Kind of Courts / Commissions with all the perks and privileges but No specific procedural bonding. This gives these NSPs access to give any judgment having a national Jurisdiction. Green Tribunal is one such example. It can stay any development project or stop any industry anywhere in the country at its own whims and fancies. This also ensures that the States / Public is brought under “Knee Bending” control of the State High Courts who only have powers to stay / overrule such judgements.
Hereditary / Family Fiefdom. Since the selection of Higher Judiciary is opaque, it gives immense opportunity to collegium members to select and elevate their own children and kins in higher judiciary and that too after they have earned good amount of wealth as lawyers for about 20 years. Here I do not say that all such elevations are of undeserving persons but the system being opaque , it is always doubtful and against the principle laid down by Lord Hewart that “Justice must not only be done , but must also be seen to be done.”
To Conclude.
Judiciary is the last bastion for justice and it has ensured in the past that it can withstand pressure and deliver justice. But slowly it is advancing and encroaching on the domain of other two Pillars of our constitution and thereby creating chaos in the functioning of Legislature and Executives. They are also creating a pan India system which if exploited can become an echo system for dictatorial takeover of the country in the form of erstwhile Politburo, or Military Junta of Myanmar or still worse like the Pak Army.
So I pray that our Judiciary re-examines its focus and carry out course corrections as needed and deemed fit. About sharing power former speaker of Lok Sabha Mr. Somnath Chatterji has said that “Rule of Law has to be enforced NOT by expanding any organ’s extent of powers, by encroaching in to areas specifically assigned to any others, but by diligently and effectively discharging each one’s assigned responsibility”and finally words of formar Chief Justice of India Justice P N Bhagwati are worth remembering “We are right because we are Final . We are not final, because we are right.” .
Barring few interruptions and exceptions these three Pillars have ensured that they do not transgress in to each other’s domain. Also the Indian electorate ensured that the Legislative interference with “Executive” was checked when it was exceeding limits. This system ensured a dynamic equilibrium in governance of India.
What happened in Pakistan?
Pakistan was created based on the hyped fear psychosis of Muslims .This feeling of insecurity gave a special status to Pakistan Army as the ultimate guardians of Pakistan. Notwithstanding this the first constitution of Pakistan was like the Indian Constitution based on similar three pillars of governance. However immediately after Mr. Jinnah’s death, an intense power struggle started between the Legislature (Sunni Muslim Politicians) and the Executive (Kadian Muslims educated in Aligarh Muslim University) and the administration became defunct and started collapsing. This gave the Pakistan Army an opportunity to intervene and the Pak Army under Fd Marshal Ayub Khan grabbed the power in 1958.
Taking over of country by Pak Army which basically consisted of Punjabi Sunni Muslims satisfied the Legislature’s constituency. Together they ensured that the Kadiyan dominated Administration was brought under total control of Punjabi Sunni Muslims and the Kadiyan’s were declared Non- Muslims. The Judiciary was generally neutral in this and played safe by devising suitable doctrines to support Military take over.
Like Mr. Jinnah, Mr. ZulfikarAli Bhutto was equally ambitious and was determined to rule Pakistan. For this his major obstacle was Pak Army which he shrewdly humiliated and neutralized by making it fight two wars against India and at the cost of breaking up of Pakistan in 1971. After becomimg the Head of the state, he drafted a new constitution and put stringent measures like Death Penalty for Military take over. However it back fired on him and his own prodigy Gen Zia hanged him in a murder case and in 1977 the military rule was back once again. The Pak Judiciary was a moot spectator and silent participator in this.
With this the Pak Army achieved absolute power in Pakistan where it had all the authority but no responsibility, except providing security by creating the fear psychosis against India. The International situation at that time ensured that Pak Military gets sufficient funds to remain in control of Pakistan and ensured its unflinching loyalty against Soviet Forces in Afghanistan.
After the death of Gen Zia and withdrawal of Soviet Union from Afghanistan, NATO interests in Pakistan started reducing which gave boost to Legislative Forces (Politicians) and they came to power with open support of Pak Army. However this was short lived and again Gen Musharraf took over reins . The 9/11 terrorist attack came as a big blessings for Pak Army as they remained in good books of US alliance which ensured continued dollar inflow.
The aim of bringing these details about Pak Army is to highlight the fact, that an organization which was most respected in the country and which was seen as last pillar of public faith, has slowly exploited its unassailable position, with the connivance of Western Countries to nearly ruin all the systems and establishments in Pakistan and has brought the country on the brink of disaster.
With this, we now see the way our Judiciary is moving in a similar fashion and one by one encroaching upon domains of others. They are heading towards acquiring all the authority but no responsibility.
First 20 Years after Independence
Post-independence for 20 years there was only one party (Congress) in power without any worthwhile challenge. So the legislature was working without any competition to its hegemony. In the Executive, the old ICS lobby was still in control and the momentum of previous government was continuing without any hindrance. In Judiciary also similar system was continuing. By showing healthy respect for each other they ensured that there was no conflict of interest.
After 1967 the things started changing. In general elections Congress got a jolt and also lost power in some states. This made Congress to start influencing Executive for progressing its political agenda.
Advent of Mrs. Indira Gandhi.
After Mrs Gandhi became PM, being extremely ambitious, and hungry for power, she started using all the resources under her command for furtherance of her plans, irrespective of right or wrong. It is at this time the Law Ministry started exerting undue influence in selection and appointment of Judges.
1967 was also the time when the SC gave judgement in “Golakhnath Case” whereby it totally blocked any type of constitutional amendment which can affect fundamental rights. So a conflict started brewing between the legislature and judiciary. In 1971 Mrs. Indira Gandhi led India to a resounding victory over Pakistan and was at the height of her popularity with a thumping victory in the Parliament. Despite of this, the famous judgement in “Keshavanand Bharti Case”, the Supreme Court permitted only part amendment of the constitution without affecting the basic structure of the Constitution (thereby limiting Parliament’s Power of Law making. In addition the Judiciary acquired full control over law makers by declaring themselves the sole interpreter of the Constitution.)
It is perhaps at this stage the Judiciary started slowly expanding its control in other spheres. The first major casualty of judicial activism was Mrs. Indira Gandhi herself. In the famous Rajnarayan case Mrs Gandhi as PM was excessively punished ( she had only vicarious liability) by banning her for six years from fighting elections. The net result of this activism was PROCLAMATION OF EMERGENCY. During Emergency the judiciary kept low profile and submitted itself to the will of Mrs. Gandhi in enforcing the emergency.
On lifting of emergency certain amendments made in 42nd Amendment of constitution were found against the basic structure of the constitution and were repelled by the courts. Also Judiciary submitted itself to bureaucratic control in Transfer and appointment of Judges by giving favourable judgement “Judges Transfer Case of 1981”.
From 1981 till 1993 it was the turn of Legislature (Politicians) to meddle Judicial functioning by trying to subvert the Judiciary through favouritism. However in 1993, the Judiciary bounced back through “Second Judges Case” and adopted Collegium System by interpreting the word “Consultation as Concurrence” and taking complete control over Selection, Promotion and Transfers of Judges of the High Courts and Supreme Courts.
From here started the journey of unbridled power of the Judiciary. It involved Judges Selecting Judges, Judges promoting Judges, Judges transferring Judges, Judge making a binding recommendation of his successor’s name. It also paved the way for all judges of Supreme Court to give virtually any judgment as they were the SOLE INTERPRETER OF THE CONSTITUTION.
There is the famous saying that “Power corrupts but Absolute Power Corrupts Absolutely”. This unbridled hoarding of unchecked power by the judiciary is being justified by generating fear psychosis among Indian people about the need for Absolute Judicial independence. Based on this ‘security’ approach the revealing signs earlier shown by Pakistan army in slowly acquiring the powers and ruining their country are now seen in India.
Revealing Signs
Opaque System of Selection. The first and foremost step in power acquisition is to create a system of Selection that is a Closed Domain of few ( Like Politburo) who do not wish to be accountable to anybody outside their Closed Domain. This ensures total protection of its authority with No Possibility of future back-lash.
Different Rules for Self and Others
(a). Annual Confidential Reports. Selection and Promotion of Judges is a closed system without any accountability or openness towards the candidates under consideration. While this is considered essential in Judiciary, the same Judiciary has scrapped the system of Confidential Report in Bureaucracy thereby creating a very bad system of Governance.
(b ). Asset Declaration. It is mandatory for candidates to declare their assets (Including that of their near relations) before contesting Elections. These declarations are in Public Domain. But there is NO COMPULSION for HC and SC Judges to declare theirs and their near relatives Assets in Public Domain before taking Oath of Office and then on Annual Basis.
(c ). Women Participation. It is an accepted fact that the representation of Women in higher judiciary is at much below level than expected. However instead of improving it, the Judiciary prevailed over Armed Forces to accept women for Permanent Commission and in all Arms and Services. While equality of opportunity irrespective of gender is the desired goal everywhere, however specific to the defence forces, this has an adverse impact at unit level due to the physical nature of the job.
(d ). No Punitive Action. Many a times it is seen that random judgments are given without any basis and only way to get rid of them is to go to higher court. While Higher Courts do take cognizance of such random judgements, “NO PUNISHMENT IS GIVEN TO THE JUDGE PASSING SUCH RANDOM JUDGEMENT DESPITE OF IT BEING BROUGHT TO THEIR NOTICE BY THE LAWYERS. Mere strictures are passed which do not have much deterrent value.
(e ). No Cooling Period. All Govt employees are barred from taking any employment post retirement for a given period of time which is called as cooling period. There is NO such ban on Judiciary.
(f ). Censorship on Media. By wielding the sword of contempt, the media is kept under full control to ensure that there is NO ADVERSE REPORTING.
Pleasing the Western Countries Specially in Europe and USA. A number of Western Countries have a panchant to propagate some idealistic, utopian and “holier than thou” values to their formar colonies. They create NGOs for propogating these through International Seminars and invite a number of serving Supreme/ High Court judges as Honorary Speakers ( All expenses covered with Honorariums). By this they earn a sense of gratitude which influences the judgements back home. In order to exibit their modern HR values ,some judges devise new doctrines for giving random judgements. That’s how Rohangyas and Bangla Deshi intruders are protected from extradiction and are allowed to proliferate.
Post Retirement Perks and Employment. A new trend is now emerging where in SCs and HCs are devising various means to facilitate legal intervention in administration of cash rich semi-public bodies e.g. BCCI and now even SEBI. In addition some HC Judges have started hearing Su Motto Appeals to grant themselves “Z Security Risk status” post retirement. Some of such blatant and berserk declarations were stayed by Hon’ble SC after lot of hue and cry, but those involved in such assertions were NOT punished.
Financial Cost Effect of Judgement. Cumulative Financial effect of a judgement is neither taught in Jurisprudence nor is factored in any Judgement. This results in some judgements being given without any thought of its effect on the Exchequer which is tax payer’s money. It is like “Robbing Peter to Pay Paul”. In a recent Judgement the Delhi HC declared that the ‘Central Police Forces’ are same as the ‘Armed Forces’ and hence entitle for ‘Old Pension Scheme’. Do ‘Mi Lords’ understand the financial effect of this and that too without any knowledge about difference between Armed Forces and Central Police Organizations. Anothet famous judgement of 1976 vintage suddenly declared all Class 3 ( Group C) employees as ‘Industrial Labour’ and made them entitle for anuual Bonus.
Non State Players (NSP). For providing post retirement employment and keep Local Govts under check a tendency is seen to create some “Non State Players” i.e. Kind of Courts / Commissions with all the perks and privileges but No specific procedural bonding. This gives these NSPs access to give any judgment having a national Jurisdiction. Green Tribunal is one such example. It can stay any development project or stop any industry anywhere in the country at its own whims and fancies. This also ensures that the States / Public is brought under “Knee Bending” control of the State High Courts who only have powers to stay / overrule such judgements.
Hereditary / Family Fiefdom. Since the selection of Higher Judiciary is opaque, it gives immense opportunity to collegium members to select and elevate their own children and kins in higher judiciary and that too after they have earned good amount of wealth as lawyers for about 20 years. Here I do not say that all such elevations are of undeserving persons but the system being opaque , it is always doubtful and against the principle laid down by Lord Hewart that “Justice must not only be done , but must also be seen to be done.”
To Conclude.
Judiciary is the last bastion for justice and it has ensured in the past that it can withstand pressure and deliver justice. But slowly it is advancing and encroaching on the domain of other two Pillars of our constitution and thereby creating chaos in the functioning of Legislature and Executives. They are also creating a pan India system which if exploited can become an echo system for dictatorial takeover of the country in the form of erstwhile Politburo, or Military Junta of Myanmar or still worse like the Pak Army.
So I pray that our Judiciary re-examines its focus and carry out course corrections as needed and deemed fit. About sharing power former speaker of Lok Sabha Mr. Somnath Chatterji has said that “Rule of Law has to be enforced NOT by expanding any organ’s extent of powers, by encroaching in to areas specifically assigned to any others, but by diligently and effectively discharging each one’s assigned responsibility”and finally words of formar Chief Justice of India Justice P N Bhagwati are worth remembering “We are right because we are Final . We are not final, because we are right.” .