TeaHe accused the Governor of Tamil Nadu of overlapping the judiciary by several BJP members in the case of the Supreme Court’s decision and the Waqf Amendment Act. In response, lawyers and opposition members urged the executive to accept the decisions of the Supreme Court with grace.
This is only the latest episode in tug-off-wore between the judiciary and executive-legal branches. However, in this unstable struggle, the judiciary has always won. It has curbed the power of Parliament to amend the Constitution through the original structure theory, has taken away the power of the President to appoint judges in the High Courts, read the laws through interpretations, decided on policy matters, took care of investigation and implementation of its orders, and recently, set a time for the President to work on a time and bills.
The Supreme Court has adopted several methods to limit the executive and the legislation’s remitts – often beyond the original constitutional plan. One such method is a continuous call for Article 142. Under Article 142 (1), something is wrong in “complete justice” and has been implemented.
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Article 142 (1) of the Constitution State america: “The Supreme Court in the practice of its jurisdiction can pass such a decree or give such an order, as is required to perform full justice in any reason or case, and before any decree is passed or ordered, hence can be implemented in the entire region of India, such as any law made by Parliament, no provision can be made in this way.”
This provision implies whether the Supreme Court will pass a decree or implement its orders with the goal of ensuring “complete justice” All The pending cases in front of it, regardless of the parties involved.
Therefore, calling for “complete justice” from time to time is noise and irrelevant and irrelevant on the Supreme Court. After all, no one claims that the Supreme Court should give “incomplete” justice. The more pressure question is: How the Supreme Court goes about achieving its goal of doing “complete justice”.
Also read: In India, the Supreme Court problem is not only judicial overlapping, but also less
Include words without the power of doing so
Typically, the job of the judiciary is to evaluate laws and give justice. Courts are not expected to invent the new law where no one is present, or where the existing law is unclear.
As the last interpreter of the Constitution, the Supreme Court can sometimes read a provision in a way that can be found against our general knowledge, but we have to postpone the interpretation of the court as just and fair.
He said, even the Supreme Court is not strong or has not been expected to import new words or meanings in a law that is completely foreigner for its plan. This Shakti is with Parliament, which can amend the Constitution by adding or removing words. In recent years, however, in the name of “complete justice” or clarity, the Supreme Court has read the meaning in constitutional provisions that were never written in the original text.
One such occasion was when it explained the words “consultation with CJI” Article 124 (2) Understand Thorough With the CJI or Supreme Court Collegium in case of appointment of judges in the High Courts by the President. But “counseling” and “consent” are fundamentally different. “Consultation”, according to the Cambridge Dictionary, there is a discussion to seek opinion or advice – where the final decision still lives with the person who consults. “Consent” means agreement – where the agency is being consulted. In this case, CJI and Collegium. In the interpretation of the Supreme Court, the decision -making agency moves from the President to the Chief Justice.
This raises a deep question of constitutional integrity: at which point the judicial renovation changes the original text so much that the constitution, in fact, becomes something else? Both Article 124 (2) and Article 200 no longer had words imported by the Supreme Court.
Meanwhile, the executive still works on the collegium’s recommendations -sometimes with immediate, sometimes delay. Unhappy with the government, people criticize the delay as executive intervention in judicial freedom. But in prevalent generalization that politics is not morally good and is above the rebuke, the real amendments made by the Supreme Court in the Constitution are ignored, while the opposition of the executive is described as a high-hand.
Also read: Women, STs, High Courts – Cologium Pick Fair Representation for Supreme Court judges
Who will hold the courts accountable?
By explaining the consultation for consent, the Supreme Court has forced the President to agree to the opinion of the CJI or the collegium in the appointments of judges. In the Governor case of Tamil Nadu, the court took a step forward by setting a deadline for constitutional authorities – no such deadline is being mentioned in Article 200. It can be safely concluded that the Supreme Court can implement the same argument for judicial appointments, declare that one can delay the appointment of the amount of appointment warrants.
In such a case, even the signature and seal of the President can be presented under such an order. Such a development will present to the President, which is executive, the only rubber stamp, or worse, completely meaningless. The “counseling” has already become “consent” and now appointment can be understood “. In both cases, the constitutional role of the President effectively disappears.
Meanwhile, the backlog of pending cases in courts continues to grow – now measured over years, not in months. Nevertheless, in the case of delay in giving consent to bills, there is no one to set a deadline on courts. In theory, the judiciary is accountable to a book, the constitution, whose only owner seems to be the judiciary. No matter how sacred a book is, there is no way to apply accountability.
Satyanand Mishra is former Secretary, Personnel and Training Department (DOPT). Views are personal.
(Edited by Prashant)