Executive vs Judiciary

First of all, I am not sure that I like the idea of documents such as the charge sheet and details of the alleged fraud being made public even before the accused has been arraigned. This is all part of the sensationalism that comes with this administration’s so-called fight against corruption. Accused individuals are charged, tried and convicted before the court of public opinion. But that is neither here nor there. What is done is done! Whatever the case, as you know, if you are an ardent reader of this column, I believe that the due process of the law must be followed in the execution of law enforcement and justice delivery. The thing about pumping your fists in praise of violations of the due process is that today it is somebody else having to vindicate themselves, but tomorrow it could be you. Not all is ever as it seems. While it seems like the CJN might have erred, the beauty of the common law, which we practice is that you must hear both sides of an issue before we pass judgement. This is the constitutionally protected right to fair hearing. The timing of the prosecution is also suspect. There are speculations that this move is designed to remove the current CJN and appoint one who will be more favourable to the ruling party should it turn out that they need to stand before election petition panels after the coming 2019 elections. Only those prosecuting know if there is a motive and what that motive is. But if it is political, a lesson from India is instructive here. The concept of a Basic Structure Principle in constitutional amendments was developed in India. The Indian government under Indira Ghandi tried to amend the constitution so that certain property rights were no longer constitutional rights. In the case of `Kesavananda Bharati v State of Kerala, (AIR (1973) SC 1461, Khanna J. said, ‘… it is not permissible to touch the foundation or to alter the basic institutional pattern. The words ‘amendment of the Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure of the framework of the Constitution. Essentially, even though certain rights were not expressly enumerated in the Constitution, there was a basic structure within which all amendments must fit. This is not what Indira Ghandi wanted. Although she had the backing of Parliament, the Supreme Court felt that the amendment was unconstitutional. It was not within the basic structure of the Constitution of India. Thus, the basic structure principle was born. When Indira Ghandi returned to power some years later, she tried again to make some changes to the Constitution. Before that, the tenure of the Chief Justice of the Supreme Court was over and it was Ghandi’s place to appoint the new Chief Justice. Instead of appointing the judge who was next in line, she skipped several levels of seniority and appointed a chief justice who she believed was sympathetic to her and would support her administration’s plans. Unfortunately, this panel of the Supreme Court headed by Ghandi’s pick disappointed her. Ghandi had tried, once again, to amend the Constitution to suit her political ambitions. Once again, she was able to get the Parliament on her side. The Chief Justice, Chandrachud, in the case of Minerva Mills v India (AIR [1980] SC 1789) staying true to the basic structure principle said, ‘The power to destroy is not the power to amend… the Parliament cannot under the exercise of (its) limited (amendment) power enlarge that very power into an absolute power.’ The lesson here is that sometimes political machination fails miserably. Ghandi thought that she had put all her ducks in a row. Having got the members of parliament in her pocket and appointing a chief judge (out of turn) who she thought would be loyal to her, she must have believed that any amendment that she cooked up with the backing of the parliament would scale through if it was ever challenged in the courts. She was wrong. Let us hope that there is no ulterior motive behind the prosecution of the CJN. But if there is, there are a lot of lessons from history that show us that the results may be disappointing to the architects of this prosecution. If the CJN is found guilty he must face the music. Let us be more restrained in the way we judge those accused of corruption and fraud. Let the matter go through the wheels of justice, slow as they may be. This business of prosecuting and convicting accused persons in the media is akin to mob justice, which we know never ends well. After all is said and done, where the accused is acquitted by a court of law, the damage is already done. The person’s name and reputation are already damaged and they have expended time and money to defend themselves.]]>