CONGRESS MANIFESTO 2019

PROF FAIZAN MUSTAFA, VC, NALSAR, HYDRABAD has written an excellent piece in the Indian Express,

pl find link here https://indianexpress.com/article/explained/explained-judicial-reforms-in-congress-manifesto-lok-sabha-elections-rahul-gandhi-5657365/

Pl find my comments as under--

Excellent write up. Prof Faizan Mustafa has touched the core of the issues. He rightly mentions that the Supreme Court of India is the strongest Court of the world. It is because of various reasons referred in the article. Three other reasons may be, 1) It has declared in 1973 that the Parliament cannot amend certain parts of the Constitution of India because they are essential values and principles of democracy called as basic structure theory 2) Constitutional amendments can also be declared unconstitutional on the ground of basic structure theory. This has not been done even in the USA where the Supreme Court is very powerful. 3) The growing use and power of article 32 and 142 through which the Supreme Court is making any order leading to amendments in the Constitution of India. That way, it is exercising constituent power.

It is disappointing for all to know that the Supreme Court lacks in its inclusive character. Is it a supply side problem or demand side problem? Is it because of some systematic bias against weaker section of society? Or is it because we fail to come up with qualitative intellectual product? Or is it because of both? Some critics blame the Supreme Court for this, though Prof Faizan has not done this. Many times qualitative product is not available. Many posts of professors (or other teaching posts) are lying vacant because of unavailability of SC/ST candidates. We can understand the difficulty at judicial side where responsibility is greater. Regarding Muslim judges, India has fared well though it may perform better. Judges who had maximum tenure in the Supreme Court were Muslims. Lack of education among Muslims need no explanations.

Regarding accountability of judiciary, the provision of review, revision, appeal, SLP, PIL, curative, late night petitions etc are means of rectifying defects and therefore make the judges responsible. The Supreme Court is very much open to improvements. There is no Court in world which permits various modes of improvements. Indeed they are one of the reasons of delay which has been rightly pointed out by the author. Accountability in the sense of easy impeachment has its weaknesses. If impeachment will be easier, it will have impact on independence of judiciary. We may recall how an obiter observation on reservation policy has invited impeachment fear against a Gujrat judge. A decision which goes against majority sentiments may attract impeachment under the pressure of majority. The impeachment motion against Supreme Court judge V Ramaswamy failed not because of strict procedure but because of partisan politics played by Congress party who sabotaged impeachment motion by exercising absenteeism. Prof Faizan writes very well which we discuss in public forums.