The dissenting voice has become a rare commodity in today’s India. The percentage of voter’s turnout in the last election might have indicated a renewed belief in democracy and democratic principles. However, what has emerged in the aftermath has been quite different and disappointing. In all the mediums available there is bullying, bad mouthing, name calling and out shouting of any dissenting voice. Hero worship and blind faith has been at its peak. One would have h"Scales of Justice" button (Gold)oped the elections were not mere symbolism but truly represented our commitment to democracy; however looks like our country might still not be ready for it.

The incumbent Government has certainly taken many positive steps and also giving indication of an economic revival and they are all welcome and certainly need to be appreciated. However wherever the Government has gone wrong it deserves to be criticized and must be criticized. The danger of hero worship and blind faith is the partisan view point that one takes of Government policies. This includes praising the good moves and ignoring the bad ones till the bad ones start hurting us more than the good moves manage to help us. It is this critique that is being choked and not being allowed to be heard over the din of hero worship. Personality cult is not new in India we have seen it in the past and we are seeing it again so not much has changed in the retrospect.

Are these misplaced apprehensions that I garner? I’ll leave that to the reader to judge based on the facts that I present. There are 4 pillars on which Indian democracy stands. They are the Legislature, the Executive, the Judiciary and the Press. Even if one of these 4 pillars becomes weak the democracy might become a sham democracy. What I present here are ways in which the incumbent government has systematically weakened the pillar of judiciary.

Using the ordinance route to appoint an ex-TRAI chief: The Regulatory authority TRAI, was created to be totally independent of the executive, so that an impartial view on issues related to telecom could be provided. The independence of the authority was severely compromised when the Government got the ex-chief of TRAI, Nripendra Mishra, appointed as a Principle Secretary via the ordinance route. As per law minister Ravi Shankar Prasad, the ordinance merely corrects an anomaly that existed in the system. The anomaly that he speaks of is that of- any chief of such regulatory authorities not being eligible for posts in the Government even post retirement to ensure absolute independence. By going via the ordinance route the Government has ensured that successive chiefs of such regulatory authorities like SEBI or TRAI are mindful of possible post-retirement opportunities which could strongly influence their pre-retirement decision making. Purely on the strength of majority in the lower house and interesting floor management in the upper house, the ordinance was passed despite opposition from many quarters.

Appointment of ex-CJI as Governor: Close on the heels of the above decision came the decision of appointing ex-CJI as Governor of Kerala. Another instance where even the position of CJI has been compromised and its independence from the Executive, jeopardized. Even CJIs would be mindful of possible lucrative post-retirement jobs. So the judiciary has already been compromised. I won’t even bring up the possibility of the ex-CJI being rewarded for favorably deciding on a case involving Amit Shah.

Interference in appointment of Supreme Court Judges: The incumbent Government interfered in and opposed the appointment of Gopal Subramanium as a Supreme Court Judge. The current CJI is on record expressing his anger and disappointment on how the current Government singled out Subramanium’s name and objected to his candidatur. The matters were pushed to an extent where Subramanium was left with no choice but to withdraw his name from the list of applicants. This is sufficient to demonstrate the expanding powers of the executive without even having to bring out the point of the role Subramanium played as amicus curiae in Sohrabuddin fake encounter case related to 2002 Gujarat Riots.

Not Allowing Leader of Opposition: Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men’ –Sir John Dalberg-Acton. The power of the Executive has been expanding as I indicate in the above instances and certainly has muscled its way on many instances in the Legislature too. For appropriate check and for a mature democracy like that of India certainly a leader of opposition is the need of the hour. Unfortunately the opposition is so fragmented that nobody automatically qualifies for the role. In the past Congress governments have been guilty of using their numbers to not allow leader of opposition. The current Government could have proved itself to be different by gracefully allowing the leader of opposition role to the single largest opposition party. Vinod Mehta, editor-in-chief of Outlook magazine, is on record saying that lets forget the past and also what the rule book says, it is essential for proper functioning of legislature that a leader of opposition be present to keep the Government in check. Despite repeated requests and discussions this request has fell on deaf ears and the speaker in LS has rejected it outright.

Discarding Collegium system for appointment of Supreme Court Judges: The collegium which used to appoint Supreme Court Judges was scrapped this year in favor of National Judicial Appointments Commission. It’s interesting to note who the members of the NJAC are:

  • Chief Justice of India (Chairperson, ex officio)
  • Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
  • The Union Minister of Law and Justice, ex-officio
  • Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

If the position of CJI is compromised by the Government; if the appointment of Supreme Court judges is influenced by the Government, if no Leader of Opposition is present what chances remain that the appointment made by NJAC would be fair and without influence of the Government? The independence of the judiciary, as I see it, has been permanently compromised.

The Executive is in expansionary mode, the legislature has suffered due to the muscle power of the executive and the judiciary is also reeling under the same weight. Thus, Modi’s statement of Minimum Government and Maximum Governance’ is either not well understood or will only remain an eyewash.

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