Supreme Court: Defender of the Faith

In view of the recent increasingly vociferous debate on the appointment of judges of the Supreme Court and High Courts, and the claims of the government to oversee such appointments, I wish to lay down my own views even though the SC might slap me with a contempt of court case. But I am just expressing my opinion, which some people may or may not like.

To put it simply, the judiciary is one of the three branches of the Indian government. The framers of the Indian Constitution wanted to make each branch equal to the other two. The judicial branch of the government is therefore neither superior nor inferior to the executive branch headed by the Council of Ministers, including the prime minister. In fact, the legislative branch or the parliament should be considered to be the most powerful branch because this is the body that is directly elected by the people. Parliament, therefore, has the most power, as the elected representatives of the people. In other words, parliament is supreme and sovereign.

It used to be that sovereign power rested in the British monarch until 1689 when parliament passed a bill called The Bill of Rights, which outlined specific constitutional and civil rights and ultimately gave Parliament power over the monarchy.

It is believed that the English Bill of Rights is the primary law that set the stage for clipping the wings of the absolute power of the king and the development of constitutional monarchy in England.

The judiciary cannot overturn legislation passed by the British Parliament because that would amount to the judicial branch having legislative power, which would be unacceptable to Parliament in which rests ultimate sovereignty.

Since the Constitution of India is modeled after the British Constitution, The Supreme Court of India (SCI) should refrain from commenting on legislation passed by the Indian Parliament. The SCI cannot exercise powers it does not have, especially since the British Constitution itself, on which it is modeled, has not delegated such powers to the British judiciary.

There is another debate that has been going on in India for many years. This is regarding the supposed power of the courts to initiate “contempt of court” charges against a person who is deemed to have been disrespectful of judges or the court itself.

In my opinion, this is not only unnecessary but also absolutist in nature. If an individual finds the decisions of the court arbitrary or discriminatory, he should have the right to air grievances. But the power of the courts to punish dissent puts a severe restraint on the individual to express an opinion. This is contrary to Article 19 of the Constitution of India, which guarantees freedom of expression. If I can express my negative opinion against the highest functionaries of the state, why are the justices exempt from such finger-pointing? If I have the freedom to blame a bad decision of the prime minister of India, why can’t I do the same about a judge? Seems highly unnatural and arbitrary. Judges are appointed by the President of India on the advice of the Prime Minister and the Chief Justice, so they cannot be above the PM and remain shielded from criticism. Of course, such complaints or feedback must be channeled and checked for authenticity and correctness.

I would like to propose that in some situations, it may be more urgent to provide for contempt of client (CoC) in place of contempt of court proceedings to seek redress of a gross violation of human rights. I have documentary evidence to support my idea.

Ultimately, the health and effectiveness of a democracy depend on the accessibility and ease of making contact with senior govt. officials. If an ordinary citizen is unable to approach his representative or other public officials for redressal of grievances, then we must assume that there is something seriously wrong with our democratic system.