Thursday 18 August 2016

The new Muhammed bin Tughlaq

Justice Lodha is the newly discovered Indian Superman, our own Boy Wonder, our panacea, our elixir for all ills plaguing Indian society. 

After appointing him head a of a panel to clean up the BCCI, the Supreme Court has appointed him head of a panel to clean up the Medical Council of India.
It is reported that In its order appointing the Lodha Committe to oversee the functioning of the Medical Council the Supreme Court said :

“All policy decisions of the MCI will require approval of the oversight committee. The committee will be free to issue appropriate remedial directions (to the MCI).” 

The Medical Council of India has been constituted as a statutory body by an Act of Parliament. There is no provision in the Medical Council of India Act stating that policy decisions of the MCI will require approval from a committee appointed by the Supreme Court, or that the committee can issue directions to the MCI.

Thus by a judicial order the MCI Act has been amended. Is this a legitimate excercise of judicial power ? Does the Supreme Court think it can do whatever it likes, and has no limitations ?

I had thought that an Act of the legislature can only be altered or amended by the legislature itself, and not by any other body, but evidently some Judges think otherwise.

It has been held by numerous judgments of the Supreme Court itself, many of them 5 judge or 3 judge bench decisions ( I have quoted about 40 such judgments in my report to the BCCI which can be seen on the website ) that judges cannot legislate. These binding precedents are often ignored by some Supreme Judges who lacking all self restraint think that just because they are Supreme Court judges and there is no one above them to correct their errors they can behave like Emperors and issue any fatwa or firman even if it violates the Constitution or a statute or a binding precedent. 

A typical example was the second and third judges cases, by which the Supreme Court substituted an entirely different Article 124 (1) for the existing one in the Constitution, creating a Collegium system of appointment of judges unknown to the Constitution, something so bizarre that it was described as ' a sleight of hand ' by Lord Cooke.

There is broad separation of powers under our Constitution between the 3 organs of the state---the legislature, judiciary and executive. Making laws is the domain of the legislature, not the judiciary. Judges can only apply the law to the facts of a particular case and can interpret the law, but they cannot make law.

However, this principle of separation of powers is often forgotten by some Supreme Court judges who very often legislate. And a typical example is the order passed in the case relating to the MCI.

There can be no objection to the Court's order appointing a committee to lo0k into any complaint against a body like the MCI. But after receiving the report of the committee the Court can only forward the report to Parliament, adding its own suggestions if it so wished, and recommending appropriate amendments to the MCI Act ( or other statute ), but it is for Parliament, in its discretion, to accept the recommendations or not, or partially accept them. 

But since some Supreme Court judges think otherwise, and are bent on ignoring binding precedents, and flouting the Constitutional scheme and the law, and think that the judiciary can solve all India's massive problems by judicial orders, may I humbly suggest to these great judges to go further and appoint committees, all to be headed by our newly discovered magician and 

Superman, Justice Lodha, to do the following acts
1. Abolish poverty in the country
2. Abolish unemployment
3. Abolish malnutrition
4. Provide universal health care in the country
5. Abolish farmers suicides
6. Abolish discrimination against minorities, women, dalits, etc
7. Fix an age cap and tenure ( as was done for office bearers of BCCI ) for Ministers, MPs, MLAs, mediapersons, film stars, etc
8. Stop joking by people altogether ( as is being contemplated by the Supreme Court for Sardarji jokes )
9. Provide speedy justice
10. Abolish corruption in the country ( particularly in the judiciary, where it is rampant ).
11. Abolish price rise
12. And in general make India a land of milk and honey.
I understand that Justice Lodha has set about in right earnest to remedy the functioning of the MCI ( as he has been doing in the case of BCCI ).

I am reminded of Mirza Ghalib's sher :
" Rau mein hai raksh-e-umr jaane kahaan thamey
Na baagh hai haath mein, na pa raqaab mein"
" The horse of the age is on the gallop, one wonders where it will stop
Neither has the rider the reins in his hands, nor his legs are in the stirrup "

Justice Lodha is galloping away, like Don Quixote fighting the windmill.
Hari Om

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