A sign of true democracy is an independent judiciary. It is unbiased and uninfluenced. It upholds the values of liberty, equality, fraternity and JUSTICE. It represents the faith of the people in a system perceived to be blemished. It has only one sacred book, the ‘Constitution of India‘ which it not only follows, but upholds and protects from those who try to tarnish the sacrosanct image of it. The judiciary is the ‘watch dog‘ of democracy.
The ‘Constitution of India’ is denoted to be a ‘living document.’ The logic behind this personification is that it has experienced numerous amendments that have kept it relevant. These amendments have been made through ‘acts’ in the Parliament or landmark judgements passed by the Supreme Court of India. It has had 104 amendments (source: National Portal of India) since its enactment in 1950. These changes have kept the evolutionary nature of the constitution alive. This was necessary as our world is rapidly changing. Its dynamic nature can quickly make anything insignificant.
Two years ago, I wrote an article about the independence and problems of the judiciary. You can read it here. It is painful to have to revisit this topic again but it is necessary, for it forms a fundamental part of the democratic nature of our country and its systems.
There have been complaints of the inefficiency of the judiciary in passing judgements on issues of national importance. Especially during this pandemic which has affected each and every single individual. Problems ranging from should final year graduation exams be held during the pandemic to the recently passed judgement on the extension of the loan moratorium period and waiver of interest on these loans. Both were some of the most important cases which have had a deep impact on people’s lives. Yet the time it took to deliver the judgement was astonishingly long. In the recent loan moratorium case, the Supreme Court was silent on the judgement for almost 3 months. No one knew when it would come out, until it actually came out.
In contrast, you might remember that the same Supreme Court was woken up at midnight during the hysterical drama surrounding the formation of the Karnataka government in 2018 and made to pass a judgment then and there (Read here). Ask yourself a question, would you, an individual citizen be able to do the same? Or would you be given a ‘tareekh’ (Date).
These are unprecedented situations. Never before has the modern world experienced an event such as this that brought it to a standstill. In such cases, it is the responsibility of the government and its various organs to step-up their game, adapt and improvise. Matters of urgency must be given priority. What happened in the 3 months the court took to deliver the judgement? Banks and NBFCs (Non-Banking Financial Companies) pressured businesses and individuals to cough up the pending EMIs. With respect to the economy, the period between the lifting of the lockdown and today has been characterized by restarting of business cycles. Businesses did not pay EMIs, not because they didn’t want to, but because the cash-flow had dried up in the 6 months of the lockdown period. It is stupendous of banks and NBFCs to even think of pressurizing small businesses into paying up.
Why do we file a case in the court? Everyone knows that it takes time for cases to be settled in the court and moreover, ‘justice is expensive.’ Seldom do people have the financial backing to support a long-drawn out court case. Even then, you will find people in the court. It is because there is faith in the system. This line from the movie, ‘Jolly LLB – 2‘ perfectly brings out the sentiments of the faith people hold in the judiciary.
“Aaj Bhi Hindustan Mein Jab, Kahi Do Logo Ke Beech Mein Jhagda Hota Hai… Koi Vewaad Hota Hai… To Ek Dusrai Sai Kya Kehtai Huai Paay Jatay Hai? I Will See You In Court”
(Even now in India, when there is a dispute between two people, you will hear them saying, I will see you in court.)Jolly LLB – 2
A phrase which must have been taught to every student since 6th grade is ‘justice delayed is justice denied.’ Why is it that a nation which has been repeatedly reminding its citizens of the negative effects of delayed justice has not been able to adapt its justice system to prevent this very phenomena from occurring. This is a problem in all levels of the judiciary from the Supreme Court to the District Courts.
Pendency of cases, lack of transparency in the appointment of judges, corruption etc. These are problems that have been plaguing it for many decades. Furthermore, a new problem which has been brought into the spotlight (but it doesn’t mean that it wasn’t prevalent) is the influence of the government in judgements, making the balanced, unbalanced. An increasing trend that has been witnessed in the judgements being passed by courts is the alignment with government’s stand on various issues. When the court was expected to pass a judgement on the issue of graduation exams, it kept delaying the judgement. It almost felt like it was evading it.
This tends to break people’s trust in the institution. Only a handful of government institutions are trusted by the people and the court is one of them. If it too resolves to being a shadow of its former self, then the people will have nowhere to go. How can this be resolved? Unfortunately, the remedy to the judiciary can be administered by the members themselves. Judges have one of the strongest protections against removal from office in the country. This provision was adopted to provide security to the position they hold.
The seemingly insurmountable problem of lack of transparency in the appointment of judges can be solved by creating a more transparent system. Even the Supreme Court had said, the collegium system needed reforms, and a new Memorandum of Procedure (MoP) for judges appointment was to be formulated when it struck down the National Judicial Appointments Commission (NJAC). The larger brunt of the mentioned problems fall on the judiciary as it is a somewhat ‘closed institutions.’ It is often rigid when it comes to ‘outsiders’ trying to experiment and bring about reforms.
As we slowly move past the pandemic. We have learnt some valuable lessons from it. Efficient governments are key to handling crises. It can accomplish a lot if it has the political will. Furthermore, no amount of ‘national emergency’ can ever put the liberty and the welfare of the people aside. Institutions cannot disregard the importance of democratic values simply because the ‘times are terrible.’ It is these democratic values which keep us going. We can quote the American interference in Afghanistan. The problem with it was that after the removal of Soviet presence, the Americans did not carry out reconstruction activities like building schools, hospitals, roads etc. This is a major reason why Afghanistan is facing the problems it suffers from today. Similarly, post-crises care, just like post-op care for a patient are just as important as the surgery. Here, the Judiciary must step-in to keep a watchful eye on the executive and the legislative, not fall in line with it. It must retain its position as the guardian of the constitution and constitutionalism.
I would like you to watch this short clip from the movie quoted above ‘Jolly LLB -2’ as it brings into perspective, the importance of an unbiased, uninfluenced and an efficient, constitutional judiciary (Spoiler alert for anyone who is going to watch this film).
Till then I will see all of you in the next Perspective article.
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