Though legitimate criticisms of the collegium system exist and questionable appointments have been made in the past, the objective of the current government from the beginning has been less about ‘judicial reforms’ and more about ‘judicial control’. Despite the NJAC decision, the Government has dragged its feet in deciding the Memorandum of Procedures (‘MOP’) for appointment of judges, subject to collegium’s approval, which has resulted in stalling almost 100 appointments on the High Courts’ benches and several on the Supreme Court. The Government’s insistence on ‘national security’ as a criterion to reject the Collegium’s nominations is dangerous and unprecedented.

At the same time, one has to bear in mind that a government having an overwhelming majority in Lok Sabha will try all means to influence and control the Judiciary. It is the Judiciary, being the guarantor of fundamental rights of people, whose role as a counter-majoritarian institution is under scrutiny here. And, with utmost respect, one can say that the judiciary has not lived up to its constitutional mandate. Whether under the tenure of Chief Justices H.L. Dattu, T.S. Thakur and the current Chief Justice, J.S. Khehar, the Supreme Court has seemed highly reluctant to get into the thicket of controversial constitutional issues, which may involve taking on the Executive might.

The most glaring example is that of Aadhaar case, wherein the Supreme Court has failed to set up a bench of 9 judges to hear the petitions challenging the government notifications making Aadhaar mandatory to access welfare benefits on the basis of right to privacy. Despite a categorical order of October, 2015 that makes Aadhaar voluntary and bars the government from making it mandatory to access 5 welfare benefits, the Government has openly flouted the order by making Aadhaar mandatory for plethora of State subsidies, including mid day meals, crop subsidies, scholarships, etc, along with registration of birth, property and linking it up with PAN. Repeated pleas to the Apex Court to set up the Aadhaar bench have gone unheeded. Recently, the Court was hearing the challenge to Section 139A, Income Tax Act, 1961, which made Aadhaar mandatory to file Income Tax returns and to apply for a new PAN, however the Petitioners could not raise any arguments relating to privacy, owing to the pendency of the issue before a larger bench. The Court even observed that if the Parliament had approved the measure then why should they interfere? This brings us to another critical issue. How were these laws passed in Parliament?

The passage of The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, in 2016 was preceded by a complete subversion of parliamentary procedures and norms, wherein the Government introduced the Aadhaar Bill as a money bill in Lok Sabha, thereby bypassing the requirement of voting in Rajya Sabha, which was in complete contravention of the law on money bill under Article 110 of the Constitution. Understandably, this was challenged in the Supreme Court in Jairam Ramesh vs. Union of India in April, 2016, but the Court is yet to hear the matter on merits, which have a huge bearing on the legality of the Act per se. Similarly, Section 139A, Income Tax Act was surreptitiously inserted into the Finance Act, 2017 at the last minute and passed as ‘money bill’ again in total contravention of the established parliamentary procedures. And this was made possible precisely because the Court had failed to hear the first case on Aadhaar properly.

Another example is that of the infamous policy of demonetisation in November, 2016, wherein the Government demonetised 80% of the existing currency of 500 and 1000 rupee notes overnight on 8th November, 2016, causing immense hardship to the common citizens, which resulted in the death of more than 100 citizens in the next two months. When challenged in the Apex Court and pressed for urgent orders, the Court hesitated to direct any immediate relief or stay the said policy, while noting the anguish and hardship caused to people, and finally referred the case to a Constitution Bench of 5 judges in December, 2016. Again, the Court refused to intervene in a critical issue or pass effective orders to hold the government accountable for its arbitrary actions.

Several more such examples can be found in the last years, including the Court’s rejection to entertain petitions from civil society activists questioning the discharge given to Amit Shah in Sohrabuddin’s false encounter case by the Special Court, or the National Investigation Authority (‘NIA’), premier investigating agency for terror offences, having no objection to Sadhvi Pragya Thakur’s discharge application in the Malegaon blast case of 2008 in the Special NIA Court. These instances, which show glaring complicity between the CBI/NIA and the ruling party, no longer invite the ire of the Courts, which till recently called the CBI a ‘caged parrot’. The Courts seem to assume that a caged parrot in UPA’s time suddenly learnt to hum ‘independent tunes’ under the current regime.

The only time the Apex Court wakes up these days is when it has to protect its own domain, whether in terms of judicial appointments or to exercise the power to issue contempt even against its brethren in Justice Karnan’s case, wherein a bench of 7 judges sentenced him to 6 months’ imprisonment, and removed him from his judicial duties, thereby effectively removing as a judge, which can be done only after an impeachment by the Parliament.

It bears no repetition that the entire edifice of administration of justice rests on the legitimacy of the independence of judiciary in the public eye. And the test of such independence, and as I said, the true significance of this counter-majoritarian institution, comes to light, in the wake of an Executive enjoying brute majority. The checks and balances envisaged in the Constitution are vital for the functioning of a constitutional democracy like India. When Parliamentary oversight is sought to be thwarted by introducing critical legislations as money bills, it is the Judiciary that has to stand defiant and proud. The Apex Court had failed once in the Emergency era in 1976. It is still exorcising the ghost of ADM Jabalpur. It cannot afford to fail again. The Indian democracy cannot be a tyranny of the elected. (IPA Service)