“It may suit the political executive of the time to have difficult questions being settled by the Supreme Court or it may even suit the opposition to challenge every measure of the government in the Supreme Court, but it is unfair to the judiciary as an institution.”The judiciary itself has repeatedly said that it is not part of the judicial function to enter into the political thicket, he noted, adding that questions that are essentially political are to be ultimately decided in the people’s court.Therefore, when the judiciary is called upon to sit in judgement over issues of great political moment, questions are being raised about whether the judiciary is unduly enlarging its remit, he observed.”The power of judicial review which was vested by the Constitution in the judiciary was essentially meant to protect the citizens in the defence of their fundamental rights.”It was not intended to be an instrument for the judiciary to nullify the will of the people,” he said, noting that the Ninety-Ninth Constitution amendment that brought in the NJAC, when it was struck down, had the support of the overwhelming “supermajority” in Parliament.”At some point in time can you take away the majoritarian will of the people from the constitutional democratic processes? You cannot. At the same time, you have to temper the exercise of the sovereign will by principles of accountability enshrined in the Constitution.”But the Supreme Court cannot use that role to progressively keep enlarging its own remit at the cost of Parliament’s remit. So these questions are very pertinent questions and they have to be addressed.”And you would have seen that voices are being raised inside Parliament that this can’t go on,” the former Law minister stressed.Kumar termed as “unfortunate” the incident of recovery of cash from the residence of a high court judge in Delhi and said the Supreme Court must make its in-house processes more just and balanced so as to protect judges from frivolous charges and provide an effective redressal mechanism.At the same time, he said, “I do not think it is fair to say that the incident is being used by the government to grab the power of judicial appointments.”He said the incident has ignited a debate about the process of judicial appointments.”I believe that the striking down of the NJAC by the Supreme Court as unconstitutional is itself a questionable exercise of the judicial review power considering that the constitution amendment motion was passed by Parliament with a more than two thirds majority of members present and voting, reflecting the sovereign will,” he said.Kumar said the cash recovery case has cast a shadow on the institutional integrity of the judiciary and even in the initial stages of inquiry, the judge stands “pilloried and condemned.””It is absolutely true that the unfortunate incident has cast a long shadow on the institutional integrity of the judiciary, but it has also given rise to many fundamental principles of constitutional jurisprudence,” he noted.He said in this particular case, even when the initial steps in the inquiry process are underway the judge stands pilloried and condemned, both in the media and by virtue of punitive transfer to Allahabad and withdrawal of work from him.”I think a time has also come for the Supreme Court to review the in-house procedure to make it more just, to make it more balanced, and to be able to subserve its purpose, which was to protect judges from frivolous allegations and at the same time to provide an effective redressal mechanism to address the ailing issues of the judiciary,” he observed.
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