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Opinion » Comment

Posted at: Oct 19, 2015, 12:32 AM; last updated: Oct 18, 2015, 10:05 PM (IST)

Separation of powers keeps judiciary safe

In Asia, political oversight has played havoc with independence of the judiciary. In India, the risk is greater because of the current regime’s appetite for appointing people from a particular faith and value system.
Separation of powers keeps judiciary safe
Former Supreme Court Chief Justice J S Verma (above) was not only the face of judicial activism. With his judgment in the Second Judges Case, he was also the author of the collegium system for the appointment of judges.

The BJP government's first act on legislation was to pass the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014. This was not as innocuous as it has been made out to be. 
Sadly, opposition political parties across the spectrum blinded by their desire to have a compliant judiciary failed to read the consequences of the government appointing judges and went on to pass both the Bills in supersonic speed. The President gave assent to the Bills on 31st December 2014. That the government has a better record on transparency in appointments is preposterous but Messers DV Sadananda Gowda and Ravi Shankar Prasad refuse to learn even after the Supreme Court struck down the National Judicial Appointments Commission Act as unconstitutional on 16 October 2015.
In its 68 years of independence, India has entered a completely new phase. Today the country is being ruled by a majority having belief in a particular faith and the challenges are omnipresent. There is a serious debate in the country about the present Government wresting control of key academic institutions by appointing persons with belief in a particular faith. Can the judiciary remain immune if the Law Minister were to appoint the judges? India must not take independence of judiciary for granted and learn from the experiences of illiberal and imperfect democracies in Asia which have either silenced the judges or reduced them to mere rubber stamps.
In neighbouring Sri Lanka, in January 2013 then President Mahinda Rajapaksa impeached and sacked the then Chief Justice Shirani Bandaranayake and replaced her with Mohan Peiris, the Attorney General. The ostensible ground for Bandaranayake's impeachment was alleged corruption. But the real reason was her insistence as Chief Justice on amendments to an anti-poverty bill as she felt the proposed legislation conferred more powers than the Sri Lanka Constitution permitted on the brother of Sri Lankan President at the time and then Minister of Economic Development Basil Fernando Mahinda Rajapaksa. In most countries in our region, judges have been reduced to stooges.
In Thailand, the judiciary repeatedly intervened to oust the Shinawatras since 2006. The Thai judiciary always remained more loyal to the Royals than the Constitution and sanctified every illegal coup de tat. The military continues to rule in Thailand as on date and shows no sign of holding elections. But the judiciary remains complaint.
In Malaysia too, opposition leader Anwar Ibrahim has been tried by a compliant judiciary for sodomy charges. On the other hand, Prime Minister Najib Razak faces serious corruption charges. These have been raised by none other than the country’s longest serving Premier Mahathir Mohamad but the judiciary remains a handmaiden of Prime Minister Razak and refuses to intervene.
The judiciary in the Maldives has been repeatedly used to keep the former autocrat Maumoon Abdul Gayoom's family’s rule alive and thriving. In the 2013 Presidential elections, then opposition leader and former President Mohammed Nasheed of Maldivian Democratic Party actually lost to the Chief Justice of the country instead of his rivals on the ballot paper. In March 2015, a compliant judiciary further convicted and sentenced Nasheed to 15 years imprisonment for terrorism charges on the charges of ordering the detention of a judge.
In Bangladesh, Prime Minister Sheikh Hasina has used a domestic court christened as International War Crimes Tribunal to liquidate the Jamaat-I-Islami for its involvement in the 1971 liberation war. The Supreme Court of Bangladesh further banned participation of the Jamaat in the recent general elections and put the rubber stamp on the death sentences, including on the elderly, passed by the International War Crimes Tribunal.
India has its own experiences. Justice P N Bhagwati, India's most quoted Indian judge on human rights issues, in the ADM Jabalpur vs Shivkant Shukla case not only upheld the suspension of habeas corpus during the state of emergency but also wrote a flattering letter to then Prime Minister Mrs Indira Gandhi. As a sitting judge of the Supreme Court, he described her comeback following the 1980 elections as ``the reddish glow of a golden sunrise’’. The history of Indian judges shows that Justice H R Khanna, the only judge who opposed the suspension of the right to habeas corpus during emergency in the ADM Jabalpur case, has been an exception.
Insulating judiciary from political processes is indispensable for ensuring the independence of judiciary. The National Judicial Appointments Commission Act, 2014, exactly sought to do the opposite. 
There is no doubt that the collegium system is imperfect. But many of these imperfections are individual oriented. However, the government's imperfections go beyond political preference. During the current regime in India, it is about preference for persons who belief in a particular faith, value system and therefore, the party. The problems with the collegium system must be addressed by making it more transparent and accountable, and not by destroying the very foundations that ensure independence of judiciary i.e. appointment and transfer of judges.
It took Justice Iftikhar Muhammad Chaudhry to bring down Pakistan's military dictator General Parvez Musharraf. This was the first time in 60 years the judiciary in Pakistan unseated an army chief from a civilian post. This sent a clear message that military dictators can be sent behind the bars in Pakistan and helped restore a semblance of judicial independence in the country.
India has witnessed emergency once and its impact still remains fresh. India must not reinvent the wheel that the National Judicial Appointments Commission Act, 2014, sought to impose. The long arms of the law must prevail and the Government must not introduce the Act in any manner.
The author is Director, Asian Centre for Human Rights


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