Tyranny of Unelected

TYRANNY OF UNELECTED

The concept of independence of the judiciary is (a) noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity

Ankita Mohanty  

On 16th October 2015, the Hon’ble Supreme Court of India with majority votes in the five-judge bench struck down the NJAC (National Judicial Appointments Commission) Act and held it unconstitutional. Although the Hon’ble Supreme Court’s judgment wasn’t quite appreciated by quite a few people of the other two branches of the government, ex-Law, and Finance Minister, Arun Jaitely, seemed to have been very vocal about his views on how the NJAC judgment was “erroneous”. His remark – ‘tyranny of unelected (judiciary)’, was a direct attack on the five-judge bench of the Supreme Court, and sparked a feud between the Judiciary and Executive. But the question that is aroused here is whether the decision taken by the court was erroneous or a shout for the independence of the judiciary, a constitutional truth?

The phrase “tyranny of unelected” means atrocity committed by people who are in power but are not elected by the people. “Unelected” can also mean that someone was not elected by the people but was placed in that position not by his merit but because of his connections with the people in power like a dictator or head of the office. In both cases, the unelected person or entity is in control of a large section of the society or the whole country and is taking actions and decisions that affect the people or they are overturning the decisions of the elected people. This act would be an atrocity because it’s taken by someone who isn’t voted by those people. In the present topic of discussion in this article, the Judiciary is said to have been influenced by the “unelected” members of the government and institutions but the Judiciary itself is also termed as “unelected” by the Government as the judges are not elected and scrutinized like the politicians. It is a concern to the countrymen since if the law-making body of a country is not independent then the decisions taken by the Courts would be dangerous for the democracy. At the same time, it is a concern for the ‘elected’ politicians as well because the judges who constitute the judiciary have the power to overturn their decisions in the court of law in any matter. The harsh experiences of Indira Gandhi-era, where judges were appointed, transferred and superseded at the calls the executive, pushed the judiciary to think of a way to safeguard its independence. “The Collegium system appointing judges with a subdued role for the executive was the answer found by it.”

The collegium system in all these years has shown the power of the Centre. At the time when NJAC was struck down, controversial transfers of Justice Rajeev Shakdher, Justice Jayant Patel and Justice A.M. Kureshi, and also the return of recommendation of elevation of Justice K.M Joseph were seen. Over the years, the Courts have acted upon the dictation of the Modi government and political parties. These controversies over politically charged transfers and resignations are a   mockery to judicial independence. Is the government hurt about not gaining controlling over the judiciary or losing a chance to improve the system? We are still confused. 

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In his interviews, after the NJAC judgment, Jaitely firmly stated that democracy would be in danger if the elected are subverted. He seemed quite discontent with the decision to remove political representatives in the election of judicial officers whom he terms as unelect. But ironically he wasn’t a Finance Minister elected by the people but as what majority think to be true, he was placed in the position of power, “unelected”, because the Central power wasn’t a big fan of Subramanian Swamy, a better fit for the position. This does not mean that what he said in his article titled ‘The NJAC Judgement — An Alternative View?’ on his Facebook handle was wrong. He stated, “There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected.” That is true, but do they have to interfere in the judicial system rather than focusing on the implementation of executive plans?

He also deduced that the politicians have taken a stand for the people when courts have wronged a decision, but he hasn’t mentioned instances where the Judiciary has protected the rights of the people when it was threatened by elected members. He has boasted about how he “spent more years in court than in Parliament”, but he does not seem to understand the importance of one basic structure of the Constitution- “independence of the judiciary”, the Hon’ble Supreme Court has been and is still trying to protect. It is expected from him than most; to enlighten us on how the courts and its decisions have been influenced by the elected over the years. But he has rather termed the Judiciary itself as ‘unelected’ and given reasons purely based on political views and agendas. 

It is no secret to us today that the trust of people on the Indian Judiciary has immensely and we can say that reasons are quite a few, especially the actions of the elected trying to influence the courts and still influencing. The reason that concerns the countrymen here is that the judges are letting themselves get influenced, passing biased decisions. But it works both ways. We have seen many resignations in the history of judiciary because they did not bend to political interference. Two interferences affect the judiciary:

  1. The biased and corrupt judges
  2. The government, political parties, powerful institutions

The actual independence and appearance of independence in the system are crucial. The bedrock of judicial independence is appointments without interference from other branches. The executive influence is still there because the judiciary often sits on in executive actions. The judiciary for reasons above mentioned is continuously losing the faith of the people and the question that arises in the minds of people are- why the unelected SC should have the final say about the laws and their rights. This doubt arises as we know the judiciary isn’t politicals- free and that gives manipulation on its very decisions affecting us. 

Justice Bhagwati in the S P. Gupta case affirmed that:

The concept of independence of the judiciary is (a) noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity…..it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective…. But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices……Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, ‘Be you ever so high, the law is above you.’ This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.”  

We can only agree because as much as the political parties are to be blamed, the judges are to be blamed too for not being honest in their decisions. In recent times, due to the acts of certain Judges and executive interference, the collegium system is seen as a failure and it has put down the motive of SC’s decision in the NJAC case. The era has seen 13 transfers, ignored recommendations, and withdrawal of appointment. Many such removals of Judges on various “grounds” have political bias and is more of ‘public disservice than public service’ as termed by Nani Palkhiwala. Hence, like any other organ of the government, the judiciary should show more accountability for its actions and decisions. This will help them to gain back the trust of the people. Along with that the Government being elected by the people should try to work alongside the judiciary rather than trying to pull it down as altogether all of them work for the people. 

There are no easy findings to dodge the present judicial crisis. Neither increasing judges’ strength as cried out by Chief Justice will fix the problem, nor the Government posing a good front on the crisis. The politics within the judiciary and outside political interference should be avoided to tackle public questions regarding the culture of adjournments, reforming the Bar, etc. Both the Supreme Court and the Government should take initiatives guaranteeing more accountability. And judicial independence is a fact and it needs to be made reality sooner or later for a better democracy.

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