Monowarul Haque :
India adopted its Constitution on 26 January, 1950. The Federal Supreme Court of India was formed two days after the adoption of the Constitution, i.e. on January 28, 1950. Justice M V Raman is currently serving as the 45th Chief Justice of the Supreme Court. On January 16 last, a programme organized by the Commonwealth Parliament Association was held at the Rajasthan Parliament House. There the law minister of India, several senior judges of the Supreme Court, the president of the Bar Council, the president of the Bar and the attorney general were almost all present. What the chief justice of India said at such an event made the pride of politicians in India’s democracy questionable.
India has the largest population in the world (it will soon surpass the population of China), the country is the largest democracy, the largest one with a written constitution. The chief justice of a nation that has all these credits pointed out how the country’s lawmakers were turning parliamentary democracy into a parliamentary form of government. In his speech, he drew a line between parliamentary democracy and the parliamentary system of government. When the constitution is supposed to be practiced; a relationship between the constitution and the law making is supposed to exist, nothing like this is happening there. Rather, some laws are being made which are being challenged in court. This is because these laws are creating many conflicting situations. Parliamentarians are not focusing themselves on legislation, or are not hearing the opposition parties properly.
The chief justice feels that the parliamentary government has replaced the current parliamentary democracy in India. As a result, the opposition is not being heard. Nor is there much discussion on legislation, and this is a serious complaint. He said these words, having his full confidence in the parliament. He pointed out that often their judges and justices have to deal with crises because of these laws.
These statements of the chief justice draw an overall picture of the country in its 70 years of democratic practice. Three times in India’s history, the executive branch has violated the norms surrounding the appointment of the chief justice. Two chief justices were nominated, one in 1973 and another in 1977, who were not appointed on the basis of seniority. Since 1950, responsibility of the chief justice of India was given on the basis of seniority.
India and Pakistan follow this method at present. The post of chief justice of the Supreme Court of Pakistan and India is filled on the very basis of seniority. As a result, there is no opportunity to appoint someone preferred by the executive to the post of chief justice of the Supreme Courts of India and Pakistan. As a result, the Supreme Court often confronts the government on various constitutional questions in these two countries. Sometimes it seems that the judiciary is coming into conflict with the government.
The chief justice of India has pointed out that there is no detailed discussion on the legal issues during the legislative process. According to him, many politicians have tried to explain the power struggle of the judiciary with the lawmakers, but he flatly rejected it, saying he has full faith and trust in the lawmakers. However, the lack of extensive deliberation and scrutiny during the legislative process puts pressure on the judiciary. Legislative bills are not analyzed thoroughly and the meaningful suggestions of the opposition are not accommodated. If these two issues were given priority in the law making, better laws would have been made for us. He also mentioned in his speech the role of opposition parties and the need for a strong opposition party in a parliamentary democracy. In a country like India, the weakness of a democratic state has emerged from this discussion of the chief justice.
As a country in the subcontinent where do we stand can be compared with this discussion of Indian chief justice. The overall condition of our country is no better. Our parliament spends the least amount of time on legislation. Often various legal matters come before us which remain open to reconsideration.
The chief justice of India has been able to raise these questions only because of one merit, namely that he has become the chief justice on the basis of seniority – not at the benevolence of the executive or as a favourite of the executive. He also pointed out the number of cases in India citing various weaknesses in the law and said that these cases could not be completed due to these weaknesses. He also opined that the state is being led towards becoming a police state. He said it has become a culture in the Indian judiciary to arrest people, send them to jail and keep them in jail for long periods on any simple charge.
He also said that 80 percent of the accused who are currently in jail are under trial. If this is the state of India at present, how much difference can we find with it? However, there was no choice of the executive branch in appointing the chief justice of India.
After India’s independence in 1947, the first controversy over the appointment of the chief justice occurred during the tenure of Jawaharlal Nehru. After the demise of the then chief justice in 1956, Jawaharlal Nehru took an initiative to appoint the chief justice of the Bombay High Court as the chief justice of the Supreme Court.
But as six judges of the Supreme Court simultaneously announced their resignation, he changed his mind and appointed the chief justice of the Supreme Court on the basis of seniority. After that there are three more instances when seniority was violated in the Supreme Court of India. A judge was made chief justice in 1964 for the first time in breach of seniority. Then there were two more occasions in history, during Indira Gandhi’s tenure, when seniority was violated.
After 1973 and 1977, seniority was never violated in India. We are far behind in that regard. Looking at the history of the Supreme Court of Bangladesh, we find that seniority has been violated seven times so far. After the government came to power in 2001, it violated the seniority rule twice. It was later violated during the period of military rule (2007). Seniority has been violated four times during the tenure of the current government. In 2010, the first chief justice was appointed, superseding his two seniors. He was the third in seniority.
During his tenure, the provision of the caretaker government in the Constitution of Bangladesh was declared unconstitutional. However, it was mentioned in that judgment that the next two elections can be held under this provision if desired. As a result of this verdict, Bangladesh’s election-time caretaker government system was abolished. This has created the ultimate dimension in our country’s current political divide.
The position of our chief justice is not determined by seniority. In this regard, there is no specific provision in our constitution. However, the president makes this appointment based on the advice of the prime minister.
(Translated from Bangla by Editorial Desk of The New Nation).
