Judiciary, Constitution of India and the Cobra effect !

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ARE CONSTITUTION OF INDIA AND JUDICIARY GOING THRU COBRA EFFECT? – IT IS TIME FOR REVIEW AND DEBATE

Some of the recent decisions and judgement over the last few months given by court that have created a ripple in the society resulting in unrest and are creating doubt about the credibility of Judiciary. To list a few:

1. Allowing Women of all ages to Sabarimala has hurt the emotion of devotees of “Lord Ayyappa Swamy” causing civil unrest among the devotee and lakhs of women devotee came on road opposing the judgement.
2. Delaying the decision on “Ram Janm Bhumi” citing as not important hurting the majority of people who were expecting a conclusive hearing on daily basis on 29.10.2018.
3. Restrictions of crackers on Diwali for the entire country (not just those areas which are facing pollution issues) which is celebrated across country hurting the Hindu sentiments.
4. Decriminalising Art 377 related to homosexuality.
5. SC / ST Act and Reservations for promotion SC/ST
6. IPC 497 Adultery Law for married couple.
7. Stay on deportation of Illegal immigrants causing the security risk and no further hearing in the case.
8. Allowing women to Shani Shingnapur Temple
9. Giving bails to high profile leaders who are accused of corruption and delay in concluding their cases.
10. Putting a stay on the deportation of illegal immigrants that is a threat to national security.
11. Opening Court on night to hear a petition against a terrorist accused for attacking parliament.
12. Opening Court at midnight to hear petition filed by Congress during Karnataka election.
13. Restricting arrest of some of the activist that were named in the conspiracy for assassination of sitting PM.

List for such cases over the year is endless which are looking biased but it is becoming ever increasing. At times it looks as if Judiciary is running the country and making the law rather than the Executives elected by people.

Ruling on Sabrimalla, Ram-Mandir and Crackers on Diwali have angered the people as these were all targeted on the Hindus religious practices and beliefs.

Are their attempt using Judiciary to demean majority Hindu community by continuous attempt on our rituals which is in a way to create a feeling of disrespect and unease towards our Constitution, our Judicial system and our government or Judiciary is hand in hand with such people and getting their support?

It is anybody guess but by enlarge such perceptions are catching up with people and getting unease.

In one of the recent video of a prominent congress leader that went viral asking for a winnable candidate irrespective of having no. of criminal cases. Are the political parties becoming hand in hand with criminals to win the election?

“Indian Constitution” was accepted in 1950 and India became republic on 26^Th January’1950. The constitution was drafted and approved by the leaders who have participated in the fight of independence from British regime after World War-II.

Parliamentary system and Judiciary are the two pillars of democracy which were kept independent of each other to have checks and balances on each other. While Parliamentarians have to be elected by the people by voting to the candidate from their constituency Judges for were to be appointed by President under the guidance of experts including Chief Justice of India (CJI) under provision of Article 124 and Article 217.

Over the years both these institutions are compromised and today are losing their credibility in the eye of people of India. We have seen the rise of corruption and scams by the elected executives when in power by exploiting the loopholes of constitution and managing the bureaucracy.

After India became republic and democratic process was put in place we have seen that-

1. In order to win the elections political parties got engaged in appeasement politics, cast politics, booth capturing using anti-social elements or harassing the voters by threats using their muscle power or by purchasing their votes by giving some meagre cash or gift insensitive (which even today are also practiced by the particle parties with no exception). However, subsequently some of such people engaged in crimes and illegal activities or the people of tented background started getting into the parliamentary system by getting elected in the assembly and central system. We have seen many dynasty parties have been started by various leaders. These leaders and their families / relatives wealth increased many fold during their tenure. With such people finding their ways, parliamentary system has been losing its credibility over the period.

 

We have also been observing continued disruption by the opposition and adjournment of both the houses stopping the business of house affecting the performance of houses and delays of many critical bills. One entire session was washed out during the current financial year due to unruly behaviour of opposition party.

The federal system of states that was instituted is also now showing its limitation where the Central Government has limitations in handling the state affairs. We have examples of J&K, Kerala and west Bengal that are making the news for wrong reasons. Government projects that are initiated for the nation suffer because of PIL raised by anyone and projects are stayed due to stay given by Judiciary increasing the cost to exchequer?.

2. CJI and selection of judges is to be done by President of India as per the provision of Article 124 and Article 217. This remained in practice for first two decades namely 1950-1970. However, when Mrs. Indira Gandhi came to power in 1971 with 2/3^rd majority and during emergency in 1975 many rule were twisted and amended as she has won by 2/3^Rd During her rule many of the clauses said to be modified and Government interference in appointment of Judges and judgements has increased. It is said that “Attorney General Interference” in SC continued and increased even after the emergency. In 1993 SC took the deviation to appoint the Judges by CJI instead by President. A further deviation in 1998 was taken that Judges shall be appointed by Judges only giving way to Collegiums system. NJAC (National Judicial Appointment Commission) bill of 2015 was over ruled by the SC on pretext of Executive interference in selection of Judges as was the case during Indira Gandhi period. The absolute power by collegiums system has also given rise to Nepotism within the Judiciary. Collegiums systems are not only kept opaque but are also not accountable.

Judiciary today is having more than 3-Crores of pending cases in all the courts across the country giving a reason of lack of judges which are to be appointed by the Collegiums themselves. While a common man suffers on delay of the decision from court and end up spending all his earnings. Many a times the delays are due to lawyers and judiciary hand in hand extending the date without hearing. The powerful and influential’s get away either by delaying or getting the decisions in their favours by making the court function at odd hours.

Has the constitution left some gaps that various political parties and politician exploited and remained unaccounted in-spite of their in-proportionate wealth and assets they have accumulated which is in public domain? Why the judiciary system is not able conclude the corruption cases that have been identified by constitutional institutions like CAG-ED-CBI-IT etc within a specified time. Various politicians easily managed to get bails and avoided persecution and continued to enjoy all facilities and are active in public life? There are many questions that are raised frequently putting up a question mark on Judiciary as they are failing time and again to close such cases for one reason or other. At time it appears that Judiciary is working for the influential politicians and party that has ruled the country for more than 6-decades.

While electoral process has been hijacked by the dynastic politics, appeasement politics, cast politics and by anti social elements, “The Collegiums System” has given rise to favouritism and nepotism as they keep the selection process opaque and unaccountable.

Neither of the situations is good for a healthy democracy. The country progress and common man has suffered due to exploitation by various Governments in power while they and their families have prospered and accumulated wealth.

The two pillars of democracy – EXECUTIVES AND JUDICIARY were created to run the country smoothly by having checks and balance.

Are these institutions now are hijacked by a certain section of society?

Is the constitution and parliamentary democracy going through the *COBRA AFFECT as the very system by itself is looking to be a problem as unable to have checks on the candidate credibility?

Is the Judiciary system also going through SIMILAR AFFECT as they are unable to rise to occasion to deliver the judgement within specified time frame and it is estimated that more than 3-Crores cases are pending in various courts and many since 2-3 decades?

(*COBRA EFFECT – When the solutions to a problem becomes a problem by itself)

 

To summarise 

Change is the way of life. Today is the world of Technology and fast moving. The India of 1950s has no relevance in context of today. We have drafted the constitution on the basis of situations prevailing and assessed at that time and primarily based it on British constitution. Many of the laws made by British Empire had continued for several decades which were of no relevance. The constitution since independence has been amended several time by various Government suiting their agenda. Many of the laws that were not relevant have also been removed by the current Government.

Today we have Aspirational India with 65% young and energetic generation and having exposure to world due to internet and social media connectivity. We want the Government to be honest and responsible. We want the Judiciary to work within a time bound frame work to deliver the judgement and be accountable. We want Judiciary to deliver the judgement without any influence and have credibility.

Today India shall have “One Nation One Law”. The system of reservations for privileged class need to be reviewed as it has failed to provide the intended benefits but is exploited by politician and has given rise for the cast base politics.

Both the constitution and Judiciary system along with the Constitutional Institutions require a “Serious Review and Major Surgery” to meet the requirements of Aspirational India. Our electoral process need to prevent the executives with tented background. The function of Parliament shall be with quality debates than disruption and holding the function of house. After all Executives and Judiciary are paid from the taxpayers money and they are answerable to people of India who have elected them.

It will not be out of place to say that to for a healthy democracy and development of country such as India we need to have a clean parliamentarian and unbiased Judiciary. Alas today both have raised doubts on their credibility.