August 10, 2020
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Border Dispute

The judiciary-legislature tussle is as old as the Indian republic

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Border Dispute

IT appears a certain provincial (state) government has issued directions that the recommendations of the (high court) Chief Justice, instead of being sent to the Premier (chief minister) should be sent to the Chief Secretary, who in some instances, has asked the assistant secretary to correspond further with the High Court in the matter." Laloo Yadav’s Bihar and the fodder scam couldn’t have been on the mind of B. Pocker Sahib of Madras when he made this point in the Constituent Assembly on May 24, 1949. But by then, the body which was drawing up the nation’s Constitution was already seized of the possible tensions that could develop between the two pillars of Indian democracy in the long run.

When the member spotted a tendency to treat the High Court as a part of the Home department, the Assembly unanimously laid down norms for the appointment of judges. This obviated the need for the court’s chief justice to discuss matters with the chief minister and the state home minister, and justify his recommendations before them.

Rohini Kumar Chaudhari (Assam) too said ministers were interfering with the administration of justice and cited a statement by Justice Beaumont of the privy council. He had said the Congress, which was at one time anxious to separate the judiciary and the executive, now wanted the old system to continue.

All along, though, the Constituent Assembly was clear there should be sufficient safeguards against political interference being brought to bear on appointments. There were heated debates whether Parliament should have the power to confirm the appointment or removal of judges.

Prof K.T. Shah (Bihar) felt if the President made appointments in consultation with the prime minister, it would concentrate so much power in the latter that there would be risk of him turning a dictator.

M. Ananthasayanam Ayyangar (Madras) was emphatic that the Supreme Court, which had been vested with the powers to protect and guarantee the fundamental rights of the citizens, must be above all interference by the executive: "The SC is the watchdog of democracy. It’s the eye and the guardian of the citizens’ rights." The debate, it seems, was by no means final. The current burst of judicial activism has brought it alive again.

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