The latest boss of the Indian state appears to be the judiciary. For a few years, it was a combination of the police, the military and the secret services, There have been twists and tums in the balance of power after the end of the Nehru dynasty. At present the Indian ‘central government is quite weak, Narasimha Rao has managed to stay in power with the help of the upper caste bureaucracy but his grip ‘on the various wings of the state has greatly weakened. The election commission seems to have become a law unto itself. The government ‘ordered elections to the Jammu and Kashmir Assembly but the three member commission unanimously vetoed the proposal on the ground that a free and fair poll is not at present possible. Earlier, it was the chief election commissioner, T.N. Seshan, a South Indian fundamentalist Brahman, who alone called the shots. He threatened to hold up elections if the states failed to complete the identity cards program for voters. The government tried to vote Seshan out by appointing two more poll commissioners, ‘The appointment was challenged in the Supreme Court which favored the government to cut Seshan to size, AAs things are, all the three election commission’s supremacy vis-à-vis the state, The dispute has gone once again to the supreme court which has still to have its last word, In the meanwhile, the court assumed to itself powers of appointment and transfer of judges, a power that earlier vested with the Indian central government. In an fort at asserting its authority vis-à-vis other wings of the state, the Supreme Court issued a series of contempt notices and, in one case, jailed an 1.A.S, officer of Kamataka state while the high court for Punjab and Haryana convicted the chief secretary of Punjab. To show the police its place, the Supreme Court ordered the trial of K.P.S. Gill in a case of sexual harassment of a woman I.A.S. officer of Punjab. It also directed the prosecution of at least 50 police officers of Punjab for human rights violations. in one case, the state’s chief minister had been unable to transfer a senior district police officer A.S. Sandhu of Tam Taranbut the supreme court exercised its own power to shift him. Sandhu was being protested by K.P.S. Gill who, in tum, had the support of the Indian central government.

While the people of Punjab have expressed a sign of relief over the judicial intervention in numerous cases of human rights violations, the overall trend has wide-ranging ramifications. What is the political significance of the tilt in the balance of power? According to India’s noted jurist, Nani Palkhiwala, the country is heading for a judicial dictatorship. The situation needs to be corrected by making the Indian central and state government, the Parliament and the state legislatures, play their rightful role in a democracy. The ascendency of the Supreme Court in the power structure could be attributed to the failure of the various organs of the Indian state to perform their parts in an effective manner. The Parliament and the state legislatures even in the best of times had not acted as genuine law makers in India. The laws were actually drafted by the bureaucracy while the legislatures merely rubberstamped them, The executive failed to play its par even in the usual law and order situations. In the case of Babri Masjid Ram temple dispute, the central government’s helplessness was pathetic. It asked the Supreme Court to advise whether a Hindu temple existed at the site of the Babri Masjid. Rama is a mythical character and does not belong to India’s known history. Yet, the central government asked the court for its help in investigating the matter. Palkhi wala rightly feels that the executive, failed to exercise its own powers to resolve controversies giving the judiciary a leverage to step out of its jurisdiction. Palkhi wala is right in many ways. Had the Indian state respected Sikhs’ human rights and not unleashed the corrupt police on the community, there would have be no occasion for the Supreme Court to issue orders it was compelled to. But as things are, a remedy cannot be foreseen.

‘There is no hope for a stable central government after the forthcoming elections. In that event, India’s polity will remain at sixes and sevens, the Supreme Court will continue to override other wings of the state as at present. But the million dollar question is “For how long will the court remain in the hands of prodemocracy judges like Ahmedi, Kuldeep Singh and others?” Certain Hindu fundamentalist judges like Madan Mohan Punchhi are waiting for their own tum to Tule the court as well as the country. The truth of Palkhiwala’s statement will perhaps then dawn on the world.

Article extracted from this publication >> December 15, 1995