Someday, this uncomfortable question will have to be deliberated. Is India federal form of government or a unitary form? The working of the supreme court of India in the past 25 years makes ordinary citizens ask this question. Can the supreme court assume all the executive authority of the central government? Can it arrogate to itself the executive authority of the cabinet, prime minister and president of India? Can it put itself above all the organs of the state- parliament, council of ministers, president and exercise unrestricted authority of the state?
What remains of the doctrine of “balances” if the judiciary starts acting without following the doctrine of “checks” thereby causing imbalances in the system?
Can it legally demand of the government to place before it how decisions are taken to buy weapons for the defence forces or how decisions are made in a case like government to government purchase deal of Rafale fighter jets from France when it refuses to share with President Of India the details of the deliberations and decision of the collegium comprising judges of the supreme court that makes recommendations to the president for appointment of judges of the SC and the HCs?
The President is the Head of State. Can any other authority in India give orders to the President? No judge can be appointed without the President signing the appointment letter (warrant). Can he be ordered by the supreme court to sign even if he is not “pleased to appoint him”?
The supreme court has made it so. Does it not signify the unitary form of government?
The manner of giving orders in cases requiring executive application of mind only, the court has passed orders creating a very uncomfortable working relationship with the government.
Let it be understood clearly that neither government nor the State can function in the style of working of the courts. There are decisions that are needed to be made in public or national interest which may never meet the legal requirements always.
If the court intervention is not yet agitated by the public it is less due to the fairness of the judiciary or its judges but the lack of it in the political leadership.
But that doesn’t vest the judges with high integrity ipso facto.
What is required is to promote high standards of integrity not a government over a government or a supervisor to function as a higher Council of Minister.
A judge is also fallible, frail and susceptible to all those seductions as any member of the executive or bureaucracy. The growing intervention of the judiciary in the working of the government is disturbing. It looks laudable only in the short run but is bound to run into trouble in due course. Political leadership short on integrity or liberal on populism has deliberately abnegated its responsibility only to force unpleasant and hard decisions on the courts. The court has gone too far into an unwelcome territory and must withdraw to its sole domain as early as possible in the interest of strengthening democracy in India.
The functioning of government has been set out in the constitution and rules made thereunder. By taking decisions like forming a collegium or putting retired judges in positions where honest administrators can deliver better results is really disturbing.
Judicial rulings where legislative vacuum exists is most welcome, with the direction to the government to bring the needed statute on the issue.
The judiciary will earn a bad name by performing administrative functions or routine jobs like appointments, postings etc. in agencies like the CBI. The court will not be able to handle the work unless it attaches the CBI to itself as one of its wings. The administrative climate is so polluted that the judiciary will not be able to clean it.
It will fail to get many honest officers to replace the corrupt. It will fail to judge the comparative merits of each of them. When government, which spends so much public money and employs millions of officers and supervisors at different levels, has failed to sustain absolute integrity among them, the judiciary can do little. Besides, radical reforms in the judicial system are overdue to fast track cases, reduce pendency to bare minimum, simplify procedures, reduce cost of justice to the poor litigants who can’t afford to pay even the fees of a lawyer and are penalized by repeated adjournments. Even a simple case takes several years to be decided. It is no justice but cruelty to seekers of justice, who respect the court next to God and court premises as a temple.
While the politician prospers the policeman is martyred.
This metaphor is not restricted to the police alone but applies to all wings of the government for rendering public service as per the law of the land. Is it welcomed by any high up? Do such public servants survive silent strikes? The need, therefore, is to establish majesty of Dharma with all its connotation. Unless it is done, Satyamev Jayate remains a hollow aphorism. Satyam Pratishthate is the sine qua non.
The Constitution makers had envisioned situations when it would be necessary to convert to the unitary form of government or to dismiss a state government not being run in accordance of the constitution of India. After the supreme court judgement in the Bommai case, the central government has been weakened. The result is Tukade Tukde gangs, stone pelters, defiant chief ministers indulging in unparliamentary language, paralysis in administration, criminalisation of politics and now even police and civil administration. A weakened central government means a weakened India. Now even judges of the supreme court lose their cool and restraint and get tempted to talk like agenda-driven journalists.
Band-aid solutions like the collegium system or cleaning up the mess thrown at its door by CBI Director Alok Verma will not succeed in the long run in a vast, vivid and complex society like India. If top positions to public offices get filled on the basis of considerations other than pure merit and integrity, public trust is bound to be affected. After the legislatures and governments, only the judiciary remains intact to a great extent. The institutions have to be strengthened and regulated to maintain excellent health.