Your honour,I dissent

                Legislature, executive and judiciary are the constitutionally defined main branches of Indian Polity with clearly demarcated and obviously balanced roles and responsibilities for each one of them. However the lackadaisical manner in which the inherent authority is exercised by the constituents has resulted in a great deal of cases flooding the judiciary and ensuing reliance of the judiciary even on governance matters. The fact that landmark legislations like Right to Information (RTI), Right to Education (RTE) had its origin from the judicial efforts is a clear vindication of the aforesaid observation. Added to this is the fading independence, if not lack of it and ineptness of the same institution in some of our neighbouring countries, which make our judiciary highly venerable and even sacrosanct some times.

With paramount reverence to this institution, I wish to dissent on certain recent observations and assertions of the judiciary and also appeal it to enlighten me on the below.

 

1.      A Public Interest Litigation (PIL) related to the nomination of Sachin Ramesh Tendulkar as a member of Rajyasabha of our Parliament is rebuffed by the apex court saying the applicant does not have Locus Standee in questioning the ground under which he is nominated as a member. Under Article 80(3) of Indian Constitution the President is empowered to nominate to the Rajyasabha, persons having special knowledge or practical experience in such matters as art,science,literature and social service. To a general public like I, Tendulkar does not fall under any of the grounds mentioned above and we are really obliged to know under what ground is he qualified to become a nominated Member of Parliament so that we shall understand the particular provision of Indian Constitution and abide by it.

2.       Part of the provisions of Article 124(2) reads as follows:

“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose……. ”

A general reading of the above provision to comprehend it would never end up in interpreting it in such a way that the Judges of the Supreme Court are to be compulsorily consulted without the equivalent importance to the Judges of the High Court and of the opinion of the President. When such a passage is provided in any of the academic or competitive examinations to assess the comprehending aptitude of the candidate, no credit would be given for such an understanding. Nevertheless I do also admit there is certainly a difference between the layman perspective of viewing this and the view of subject matter experts with the latter like Supreme Court Judges having the role of Constitutional Interpreters.

But nowhere in any democratic society the judiciary itself seems to be vested with the authority to appoint its judges at the higher levels without due consideration to the executives who are the actual representatives of people. Does it not derogate the Constitution and its checks and balances?

The Supreme Court did not allow a PIL related to the above ‘Collegium’ method of appointment of Supreme and High Court Judges quoting no locus standee of the applicant that raises the question what engrosses public interest?

Shouldn’t a general public have interest in understanding the provisions of the Constitution thereby to abide by it which itself is a fundamental duty (Article 51A(a)) as declared by the same reverent institution.

3.      With respect to disputes related to Inter-State Rivers shouldn’t the judiciary take upper hand in ensuring the member states comply with its orders and decrees rather than advising them to go for political solutions? 

      Can’t the judicial leverage of not being subjected to populist sentiments unlike the other political establishments be utilized to ensure that constitutional and national integrity is never disturbed? When the member states fail to comply with many of the pronouncements shouldn’t it invoke necessary legal provisions that would uphold its inviolability? Executive non-compliance if not reprimanded would ultimately belittle the law abiding ones and goes against equality of treatment. 

4.      When the judiciary takes suo motto notice of many irregularities in Indian polity attempting to upkeep probity in public life and private rights, what internal reforms did it carry out when former judges resigned at the brink of being removed from office by Parliament? When legislative provisions to remove Chief Justice of a High Court were initiated he was transferred to North Eastern India from Peninsular India. What does that mean?

5.      Please help me to fathom what involves contempt of court as there are subtleties associated with the critical understanding of any judgement and contempt of court. Personally I feel perturbed in understanding this nuance and many a time end up in not speaking up fearing of contempt of court, as freedom of speech and expression is subjected to reasonable restrictions.