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Independence of judiciary indispensable for peoples rights & liberty

Peoples Voice on March 26, 2017 - 7:17 pm in Reforms, Rights

Prabhakar Sinha
National President, People’s Union for Civil Liberties

From 1950 to 1993*, the power to appoint judges of the Supreme Court and High Courts and also the power to transfer the judges of the High Courts were vested in the President i.e., the Union Government. Till 1973, there was no interference by the Union Government, and it acted on the recommendation of the Chief Justice of India given after consultation with other functionaries mentioned in the constitution. But in 1973, Indira Gandhi superseded three senior judges and appointed the fourth person (Justice A.N. Ray) as the Chief Justice of India? WHY DID SHE DO IT? In a case (Keshsvanand Bharati), the three senior judges had rejected her government’s contention that Parliament had ABSOLUTE AND UNFETTERED POWER TO AMEND THE CONSTITUTION. Earlier, the Supreme Court had held (in Golaknath,1967) that Parliament could not amend the fundamental rights to infringe them. She had the constitution amended to remove the ground on which the apex court had given the verdict*. The government in Keshavanand had claimed that Parliament could even make India a Monarchy  (it was said in answer to a query). This contention was rejected by the judgment in which 7 judges rejected the contention of the government while the other six upheld it. The court held that Parliament could amend any part of the constitution including the fundamental rights but could not violate its basic features. It also said that what the basic structure was could not be enumerated and would be decided by, court when the issue was raised in a case. The judgment thus rightly gave the power to Parliament to amend the constitution but retained the right to stop its destructive power. Secularism, independence of the judiciary, democracy etc are some of the basis features of the constitution.

The judgment was given by a 13-member bench (7:6) by a majority of one. Indira Gandhi immediately retaliated by superseding three senior judges who had rejected her government’s contention and appointed the 4th person in seniority as the Chief Justice of India. The judges were naturally scared.

During the emergency, she transferred judges of the High Courts for giving judgments against the government, especially, those who quashed the detention orders under MISA. The judiciary was completely intimidated and surrendered to her.

 In a case (ADM, Jabalpur vs Shivakant Shukla), the Supreme Court upheld the Indira government’s contention that when the right to life and personal liberty was suspended during the Emergency the government could detain or torture a person and the courts could not interfere. One could even be killed by a policeman, but no action could be taken. So, the S.C. held that WE WERE WITHOUT THE RIGHT TO LIFE AND PERSONAL LIBERTY (ART.21) BECAUSE THOSE RIGHTS HAD BEEN SUSPENDED DURING THE EMERGENCY .*

A five-member bench gave the judgment 4 judges upheld the government contention with one judge Mr H.R. Khanna giving a dissenting judgment. Indira Gandhi punished him by superseding him and making someone junior to him as the Chief Justice of India.

The judges are public servants and would serve under any condition prescribed by law. Their independence from the government is necessary for the citizens, who have to fight the mighty State and not the judges who are appointed to do a job. If the judges are obliged to the Executive for their appointment, they would side with the government and not the people. They would never dare give a judgment against powerful politicians. All the politicians are united in making the judiciary subservient by taking away or having a Decisive say in the appointment of judges so that they may pack the judiciary with pliant judges and have the judgment they want. Modi government has managed to get the power to reject a name recommended by the Collegium in the name of the national security. Now, no aspirant for appointment to the High Court or Supreme Court would like to antagonise the government of the day. They would lobby and be obliged to the politicians helping them in securing the appointment.

There are shortcomings in the present system and reform is sorely needed, but they must be measures which do not erode the judiciary’s independence. The independence is needed for us, the poor citizens oppressed by the mighty government, rather than the judges.

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