New Delhi: “In India today, every institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed”, said Justice(Retired) Ajit Prakash Shah, former Chief Justice of the Delhi High Court and former Chairperson of the Law Commission of India.
Shah was delivering a virtual lecture at the Justice Hosbet Suresh Memorial on the Topic – “The Supreme Court in Decline: Forgotten Freedoms & Eroded Right”.
Taking a critical look at the manner in which Supreme Court had been handling politically sensitive and constitutionally important matters over the past six years, Justice Shah said :
“The Supreme Court’s descent was not fortuitous or coincidental, but was part of a larger, deliberately-crafted strategy on the part of the executive to seize control of the arms of the state, in ways that would benefit its own political agenda”.
He also opined that the Court has failed to perform as a counter-majoritarian Court.
“I emphasize counter-majoritarianism because it is important to recognize the role of the Court in protecting the interests of minorities. A democracy derives its legitimacy from representing the will of the majority. But this legitimacy comes at a cost, which is invariably borne by minority groups, and especially those that are unpopular or victims of deep prejudice and who cannot influence the legislature in any way. This power to protect minorities from the tyranny of the majority is the basis of judicial review powers that allow Courts to strike down laws for violating the Constitution”, he said.
He further said :
“That the judiciary is failing spectacularly to remain an independent institution is evident. That the executive is in fact responsible for this is also an open secret. How the executive is doing this is also well known. There is no need to expend energy in packing the Supreme Court with pro-government judges. Finding over 30 judges who think alike would anyway be difficult, if not impossible. The combination of opaque systems like the “master of the roster”, and a certain kind of Chief Justice of India, and a handful of “reliable” judges, is sufficient to destroy all that is considered precious by an independent judiciary. Of course, this is far from being a hypothetical scenario, and is, in fact, playing out in India right now. The truly independent and competent judges in the Court have been relegated to adjudicating private disputes, and are considered inconsequential. Many commentators have already pointed out how the last three CJIs all used the powers anointed upon themselves via the “master of the roster” to entrust politically sensitive and important matters to benches involving the recently-retired Justice Arun Mishra”.