After US independence from Great Britain, the founding fathers of America wanted to have a separation of powers of the ruler. Earlier the monarch made laws, executed the laws and himself/herself decided right or wrong. In the doctrine of “separation of powers” three branches were created i.e. legislature, executive and judiciary with with checks and balances between the power and privilege of all three of the above. The Indian constitution is based on the same principle. In fact, separation of powers is considered by the Indian Supreme Court as a “Basic Structure” of the constitution.
Why is the SC is entrusted with so much of power? Because, it is the protector of the constitution and fundamental rights of the people.
- SC appoints its own judges through the collegium system. Chief Justice and 4 senior most judges of SC constitute the collegium.
- SC appoints the High Court judges and HC judges in turn appoint the judges of lower judiciary. In nutshell, the entire judiciary operates almost independently of the executive or the legislature. I, in a way agree with the system as this immunizes the judiciary from political or public pressure.
- Article 125 of the constitution protects the salaries and other privileges of any SC judge from being be varied to his/her disadvantage during his/her tenure.
- Article 141 states that all judgements made by SC are binding on all other courts in India.
- Article 142 empowers SC to pass any decree for completion of justice.
- Article 121 restricts the Parliament from discussing the conduct, performance of a SC/HC judge except when a resolution of impeachment of a judge is in motion.
Why all these immunities given to the SC? The reason is to ensure that the SC works independently w/o any pressure from any one.
With great power comes great responsibility. Lets analyze SC actions in context of farm laws?
- Few thousand people assembled and demanded repeal of laws passed by the parliament. Job of SC is to uphold the constitution and fundamental rights. SC stayed the farm laws even it doesn’t know whether it is constitutional or not. The laws are ratified by Parliament which represents the will of the entire nation? There are few unions protesting, but do the unions represent the people of the country? No. I did not vote for the farmer unions.
- This action has a follow up question. In a country having a population of 1.3 billion, if say 50000 people protest against a law, then will the SC stay the law? What about the other billion people who are supporting it?
- The job of SC is to uphold right to equality(Article 14). Does providing more milk to a crying baby pass this test? Because I cannot go and sit on the roads, can/should SC ignore my will/right?
- The job of SC is to examine the constitutionality of the law. Is the committee going to do that?
- The SC had earlier ruled that it will strike down any law which violates the basic structure of the Constitution. Is SC right in keeping the laws in abeyance w/o deeply analyzing if the law is violative of the basic structure.
The current decision of the SC, therefore ratifies mobocracy instead of democracy where a few thousand people by holding few roads to ransom can crush the will of the majority.
The SC can lift the stay later, but this order sets a very wrong precedent for the democratic health of the country. In my opinion, SC should invalidate only those laws which violate the basic structure of the constitution not act in the interest for a few thousand people shouting on the roads. Then what is the use of the immunity they enjoy?
In the past SC has given great judgements, this is a judgment which has somewhat lowered the ideal image SC had in front of my eyes.
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