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Buying the myth of judicial independence

Buying the myth of judicial independence
A lot is being said about ‘independence of the Judiciary’. The Executive hasn’t shown how poking their nose into judicial appointments via the National Judicial Appointments Commission increases this independence, but even then its members say they respect it.

In other words, nobody seems to question the independence of the Judiciary. But let us do that: should the Judiciary be an independent body?

It wasn’t the Judiciary that brought us Independence. It was the people of India. The Judiciary needs to be accountable to the people. What’s so sacrosanct about the idea? After all, the Judiciary is a machine with human parts interpreting a book, which draws many of its ideas from the British and amended here and there by Indians.

Everything in the Constitution of India can and must be questioned by every generation. It’s a fundamental right whether or not it’s endorsed in the book. Even the idea that the “fundamental structure of the Constitution cannot be changed” is unacceptable. Who decides what the ‘fundamental structure’ entails? If it has already been decided for us by dead men, however, smart and patriotic, how are we, the living, in control?

Therefore, the whole debate triggered by the NJAC, and the Supreme Court’s decision to strike it down, sidesteps the real issue. That issue is that people do not have much control over how they’re governed in this country.

Bots with usernames like Judiciary and Executive run the show here. (Notice how the Legislature doesn’t even figure in the debate. There are several reasons, the foremost being the fact that there isn’t any real separation of powers between the Executive and the Legislature in India. Remember that the Lok Sabha appoints the prime minister.)

Why do I call them bots? This is because we, the people of India, have no real say over how either the Judiciary or the Executive/Legislature functions. I’m talking about the Central Executive and the Central Legislature. It’s they who matter. Their State-level counterparts are designed to nod to everything passed down from the top. In fact, State Governments have often been described as “glorified municipalities”. 

Who controls the Judiciary bot? It is the Constitution of India, which, as I said, is a document formulated by a set of high-power Indians at a particular period in history. It’s a book that controls the Judiciary, not us. The book needs to be rewritten from scratch as I argue in my book, but the Judiciary won’t have it. If we can’t change what’s written in the book that ultimately controls us, it’s a misnomer to say we’re in control.

Who controls the executive/legislature bots? They say we vote these ‘institutions’ to power, and there is an iota of truth in it. But they lie at such a large distance from the people of India that it’s impossible to say that we control them. No, they’re better called bots, and they do whatever they want. Their state-level counterparts are better suited to be termed as “controlled by us”, but heck, they don’t have any real power; almost all power rests with the Centre.

So, this is the real problem. As usual the entire establishment wants you to look elsewhere. It’s designed to make you look elsewhere. In fact, it was designed when you were looking elsewhere, too. That’s why they need a complete overhaul. 

(The views expressed are strictly personal) 
Kiran Batni

Kiran Batni

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