New Delhi: Justice (Retired) AP Shah, former Justice of the Delhi High Court and former Chairperson of the Law Commission of India, said that 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 benefit its own political agenda.
Justice Shah was delivering a virtual lecture at the Justice Hosbet Suresh Memorial on the topic –"The Supreme Court in Decline: Forgotten Freedoms and Eroded Right".
"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", Livelaw quoted him.
"That the judiciary is failing spectacularly to remain an independent institution is evident. 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 difficulty, 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 India right now.. 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," he added.
"Our Supreme Court today, sadly, has time for a billion-dollar Indian cricket administration, or the grievances of a high-profile journalist, but studiously ignore the real plight of millions of migrants, who do not have either the money or the profile to compete for precious judicial time with other litigants,"
"Another kind of repression that is happening, perhaps unprecedented in modern India, the stifling of the right to protest and to free speech. The executive is spearheading this, and the judiciary is either tacitly agreeing with the executive overtly, or maintain silence around the issue," he said.