Judicial Appointments Commission & 121st Constitution Amendment Bills

Judiciary, parliament and executive must be under people's control, not the bourgeoisie!

On August 13, 2014, the Lok Sabha passed the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 seeking amendments to Articles 124, 127, 128, 217, 222, 224 and 231 of the Constitution. It also passed the National Judicial Appointments Commission Bill (NJACB). All the parties in parliament approved the amendments and the setting up of the NJACB.

The setting up of the NJACB is a reflection of the contradiction between two institutions of the Indian state — the legislature and the judiciary. It is allegedly aimed at "restoring the balance" between these two institutions. When the amendments are passed by the Rajya Sabha and by 15 state assemblies, they will become law.

The new law will give an important say in the appointment of Judges to the Supreme Court, to the ruling party and the principal opposition party. It will also give a similar say in the appointment of High Court Judges, to the state assemblies. It is expected that both the Rajya Sabha, and the state legislatures, will pass these laws, as they increase the powers of parliament and the assemblies vis a vis the judiciary.

Background to the conflict

Virtually all arms and institutions of the state have become increasingly discredited in the eyes of the toiling people. Different Constitutional bodies — the Parliament, the Judiciary, executive, and the CAG amongst others — have been at loggerheads with one another. They have participated actively in discrediting the system of rule, by accusing each other of corruption, and of undermining each others' powers.

There have been several factors fueling this credibility crisis of these different institutions. One is the infighting amongst the ruling bourgeois class, especially amongst the biggest monopolies. A second is the attempt of US imperialism and its allies to push their agenda to bring the Indian system in line with what suits their aim of domination of our country.

Importantly, there is another third factor — the workers, peasants and other toiling and oppressed people of our country want to be rulers and not ruled over, they want to establish a fundamental law which guarantees and enforces their rights. They have refused to accept the present system of loot and plunder.

The Supreme Court is supposed to “uphold” the Constitution of India. The power to change the Constitution vests with parliament. Under the present system, the people do not have the power to change the Constitution. The Constitution is the fundamental law of the land, which needs to be in consonance with the times. To deal with the situation wherein the ruling class can change the Constitution when it suits it, but the working masses cannot,it has developed the thesis called the "basic structure of the Constitution" which the Supreme Court is supposed to defend.

It is important to understand that in the struggle between the legislature and the judiciary, both these institutions have always defended the interests of the ruling class. In the infighting amongst the ruling class, when one section feels it has got a raw deal from the legislature, it approaches the judiciary to get a verdict in its favour. For a whole period of nearly three decades after the Constitution was promulgated, propertied interests in land used the courts to fight the capitalists who were pushing for land reforms to expand capitalism in the countryside.

India has reached a stage of state monopoly capitalism — wherein the monopoly capitalists dominate the state and ensure that its home and foreign policies are tailored to their imperialist interests. This has sharpened inter capitalist rivalry, as well as rivalry between Indian capitalists and the imperialists. The different institutions of the state have been arenas of this rivalry.

The past twenty years have been years of coalition governments, wherein rivalry amongst different capitalist groups, and their influence over the executive have become front page news. In this situation the Judiciary has increased its powers, stepping into the domain of the legislature and the executive. The rulings on the Spectrum Scam and the Coal scam are just two examples of this.

This same judiciary, when approached by the organisations of the working class and people to reject the privatisation policy pursued by the NDA government in 2000, declared that "privatisation was a policy matter". This same judiciary has no problem with the fascist AFSPA or the UAPA. The judiciary defends the same class interests as the legislature. This has been proven time and again.

Now, the legislature is striving to gain the upper hand over the judiciary.

Central feature of the proposed law

The appointments of judges will no more be made only by a collegiums of Judges. This practice was established in 1993. Essentially it ensured that the appointments of judges of the High Courts and Supreme Court were done by senior Supreme Court Judges, in a thoroughly arbitrary manner. It is nothing more than a privilege distribution system, which has rewarded those close to the CJI and other senior judges, and discriminated against others.

There is no doubt that the collegium system of judicial appointments is thoroughly unfair, arbitrary and should be replaced. But what should its replacement be? The NJAC will give parliament and the executive a say in the appointment of judges, something which the judiciary wrested away from them over 20 years ago. The crucial question for the working class is however — does it give any say to the working people of India?

The answer is a resounding NO. The NJAC merely restores certain privileges to the executive that had been surrendered to the judiciary over the past two decades. It does not address any problem facing our society, including the problem of the credibility crisis of the institutions.

The credibility crisis of the institutions has their root in the fact that all of them, together and separately, represent only the interests of the propertied classes, especially the biggest Indian and foreign monopolies. They do not represent the people of India, her workers and peasants, women and youth, the people of the oppressed nationalities, the tribal peoples, and minorities. 

The Constitution of India was essentially framed by lawyers who had served British rule, including in the judiciary, which was an instrument to legalise colonial rule and plunder, and criminalise the struggle of India's peoples. The judiciary of India is a continuation of the colonial judiciary. It defends the interests of the propertied classes against the working class and toiling masses, and it arbitrates in the inter capitalist, inter imperialist contradictions.

Judiciary is not designed to defend their rights or provide justice to the people; something which the life experience of our people has proved time and again.

From the Paris Commune to Soviet Russia under Lenin and Stalin and thereafter, the working people have discovered and implemented new forms of government and new methods of implementing the laws and administering justice. The central feature of these institutions have been that power must reside in, and flow from the working class and toiling masses to the members of these institutions. The Central feature is that these must be elected bodies, with people having the right to elect and be elected, the right to recall those elected, and the right to initiate legislation. This holds true for the judiciary, legislature, and all other constitutional bodies. People must be enabled to govern themselves, and have the right to write or rewrite the Constitution.

The people of India need a legal system which will cater to their needs – for securing their rights as human beings, to ensure that they have access to health and education, to ensure the right to conscience, to secure their national rights and so on. They need a judiciary that is answerable to them, not to the bourgeoisie. Only then will it be possible to legally secure their rights as human beings, as toilers, as nations. When we workers and peasants of India become the rulers, we will have to put in place a system of elections of judges that serves the interests of the working people as a whole.

The toiling people have to fight to ensure that sovereignty vests in the people of India, not in the parliament. In fact, judiciary, parliament and executive must all be controlled by the people, not the bourgeoisie! 

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Rajya Sabha    National Judicial Appointments Commission Bill (NJACB)    Lok Sabha    Constitution of India    Constitution (One Hundred and Twenty-First Amendment) Bill 2014    Comptroller and Auditor General (CAG)    AFSPA    Sep 1-15 2014    Voice of the Party    Popular Movements    

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