The Indian Sultanate of Dikastocracy
When Judicial Review powers are unbridled but the Political Question Doctrine is trampled by judges and courts that are riddled with corruption, arbitrariness, questionable integrity and judgments that reek of sinister and regressive mindset, then it is time to question that group.
It was called the Revolution of 1800. Vice President Thomas Jefferson of the Democratic-Republican Party (yes they were one then!) vs John Adams of the Federalist Party.
The Republicans had a majority in the political branches but the Federalists held positions in the Judiciary.
Thomas Jefferson was not pleased with the judicial appointments of John Adams so he went on an impeachment spree to purge the "Federalist Judiciary".
One of the appointees of John Adams' was William Marbury. His commission had not been delivered by the Secretary of State, so Jefferson did not recognize him as a Supreme Court justice. Marbury filed a petition in the Supreme Court, which was then led by Chief Justice John Marshall. James Madison was the Secretary of State.
So what should Justice Marshall do? Ask Madison to deliver the Commission. Which could (would!) be ignored.
However, if Marshall did not order Madison to deliver then the Supreme Court would look weak.
In that judgment, however, Justice Marshall established the principle of Judicial Review.
In one of the critiques, Louise Weinberg said that the Court should NOT have stripped Congress of its power to add to the original jurisdiction of the Supreme Court.
In 1914 Edward Corwin, the American political scientist wrote a stinging critique of the Judicial Review and Marbury Vs Madison in Michigan Law Review titled "Marbury v. Madison and the Doctrine of Judicial Review"
He said that the power of enacting laws was the function of the government or legislature and this emanated from the power and will of the people which was supreme in a democracy. In fact, even the power to have a Constitution, the laws, and the Bill of Rights came from that power vested in the people. Legislative power, in that sense, was the vortex into which all other powers tended to be drawn. Giving the context of the Colonial times, Corwin suggested that when the British colonial masters ruled the land, they exercised their imperial authority via the Governors and the Judges. It was the legislature that was closer to the people.
The point about the Colonial structures and the disconnect between the judiciary and the will of the people rings true for India as well.
It is a fact that the Indian Judiciary was always an extension of the British Monarchy and its imperialist experiment and agenda.
When Constitution makers started writing the Indian Constitution, they began with a dim view of the people in whom they were to vest the power to rule themselves. Ambedkar famously said:
Essentially, the high and mighty had decided that "We the People" were not fit to govern ourselves. An echo of the " Indians are not fit to rule, they are fit to be ruled." statement attributed to Winston Churchill.
Welcome to the Indian Sultanate of Dikastocracy
Dikastocracy is a "Society ruled by Judiciary." It is a state in which Judiciary makes all the important political decisions.
Dikastocracy or kritarchy is an admission that people and their representatives are not the deciders of their fate anymore.
A group of men in white robes and black coats are.
They, in their magnanimity, decide what is even worthy of discussion and what is moral for society, and what the social and religious norms should be.
Let us understand the complete arbitrariness and shocking disdain for reason, logic, and people by the Indian courts.
Whose Pollution is it anyway?
In 2017, the IIT-Kanpur submitted a study to the Department of Environment, Government of National Capital Territory Delhi titled "Comprehensive Study on Air Pollution and Green House Gases (GHGs) in Delhi"
Here is the main conclusion.
As the study found, the firecrackers during Diwali were not even a factor in Delhi's pollution. Yes, on the day it did impact, but if the data was taken for the entire month, things were pretty bad in November anyway. More due to MSW (Municipal Solid Waste) burning and Biomass burning (stubble in Punjab and Haryana).
But when the IIT study by the experts was cited in the Supreme Court, the judges rather arrogantly remarked
Wouldn't hearsay or "finger in the wind" be one hell of an evidence in the courts?!
If modern medicine was run by the minds that run the Indian Courts, then we would have been solving many ailments by blood-letting through leeches even today! Imagine someone telling them that the reason why someone could die is because of some invisible virus and not some bruise or curse from someone!
For, why ask a scientist anyway when you can "put your finger in the air and know"!
Armed with "Ask the Pankazz!" strategy of pollution control, Supreme Court kept the ban on firecrackers during Diwali.
They wanted to check and punish every Hindu living in Delhi if s/he were to go against their dictates while celebrating Diwali.
However, an empirical study by IIT-Kanpur, in possession of The Pioneer, shows the SC was misled into ordering ban on firecrackers ahead of Diwali. Interestingly, an IIT-Kanpur research paper commissioned by the Delhi Government in 2016 has found that the pollution levels in the month of November 2013 were higher than the day on which Diwali was celebrated. (Source: SC misled into dampening Diwali spirits / Daily Pioneer)
IN 2022, BJP MP Manoj Tiwari tried one more time and went to the court on October 10 against the AAP government's ban. His lawyer, Shashank Shekar Jha, filed a plea to request for an urgent hearing during the lunch break.
Supreme Court's response?
“Spend your money on sweets… Let people breathe clean air.”
This year another research study, this time by IIT, Delhi, came out to look at the pollution levels and the causes. And it again said that even though fireworks do impact Delhi's pollution levels on that day, the impact plummets within 12 hours following Diwali (Source: "Delhi's Poor Air Quality After Diwali is Due to Biomass Burning, Not Fireworks: IIT Delhi Study" / News18)!
The main culprit for the pollution in winter?
So, the lawyer who got the "Ask the Pankazz" type retort from the Supreme Court to judge Delhi's pollution, Shashank Shekhar Jha, filed another PIL on November 10th. He suggested that stubble (biomass) burning itself will help curb air pollution in Delhi substantially. Hence, it should be banned.
A little over a week after Diwali.
How does India's Chief Justice respond?
"So we ban it? Will that stop? Do we enforce against every farmer? Let us think of some genuine solutions."
So a few things come to one's mind:
- If the firecrackers, which impact pollution in Delhi for 24 hours can be banned, why can't stubble burning which devastates Delhi's environment for a full month (at least!)? Do these justices even have any sense of proportion?
- If a banning order can be enforced against 14 million citizens of Delhi (that's the number of Hindus per 2011 census - download excel/Wikipedia), can't the Court enforce a ban for something that is FAR more potent in creating pollution in Delhi against 1.09 million households? (There are 1.09 million farming households in Punjab - India Today)
- And what was it about "genuine solutions"? Says who? The "Blood-letting by leeches" brigade leader?
If the Chief Justice and his judges had some humility and sagacity to listen to experts as opposed to displaying extreme arrogance of "know-it-alls" - then they would have known from that report from IIT-Kanpur. Remember?
One of the "genuine solutions" during winters that the experts from IIT-Kanpur recommended - BAN THE BIOMASS BURNING!
But when you are busy "Asking the Pankazz" about what causes the pollution in Delhi and rubbishing scientists and credible scientific research, then this sort of ignorant bull-shitting in the Courts is a direct consequence.
Let us give the judges some rope and call them arrogant full-of-themselves ignoramuses and leave it at that. Although their bias against the Hindus in Delhi at least shouts so loudly that it drowns the noise from Delhi's firecrackers which go off anyway.
But there is something sinister going on in the Indian courts that no society should ever tolerate. Specifically, one which considers itself progressive.
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Rape and Marry - the new Indian Judiciary Mantra
Yes, that seems to be the new mantra from the courts.
There has been a spate of judgments by the Lucknow Bench of the Allahabad High Court - where the judges have given bail to the rapists booked under the Protection of Children from Sexual Offences (POCSO) Act. On one condition.
That the accused will marry the victim!
Remember we are talking about Pedophiles here and men who have raped or had sex with minors.
Now read further.
Monu: Booked for Kidnapping, Rape, and enticing away a minor for sexual acts under Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act. (October 10 - single-judge Bench of Justice Dinesh Kumar Singh)
Shobhan: Booked for rape, poisoning, criminal intimidation, and wrongful confinement. The girl got pregnant and gave birth to the child. Judgment - the girl should marry the rapist. Why? Because the counsel of the rapist said the rapist and the raped girl were in a relationship. (Had the judge ever heard of Marital rape?!). Bail is given on the condition that the rapist will marry the victim. (September 30)
Suraj Pal: Booked for rape and drew charges under the POCSO Act and SC/ST Act. The girl was a Dalit and a minor. Judgment - Bail is given on the condition that the rapist will marry the victim because the counsel of the rapist says that the rapist and victim had stayed together. And, also by then, the victim would not be a minor anymore!! (September 28)
Ram Babu: Booked for gang rape, poisoning, kidnapping, and criminal intimidation under Sections 5 and 6 of the Protection of Children from Sexual Offences (POCSO) Act. Judgment - the victim had a daughter from the rapist and as per the rapist’s counsel, they both had “married” (even when she was a minor) and the rapist was “willing to officially marry and take care of the child. (September 22 single-judge Bench of Justice Dinesh Kumar Singh)
(Source: Accused in five rape cases get bail in U.P. on condition of marrying victims / The Hindu)
Or, How about Rape, Bail, and Rape Again?
The only thing consistently close to the Indian judiciary's heart is the raping of women and minor girls in India and how the victims can be further humiliated!
For what could be more humiliating for a woman or, worse a minor, than to throw her at the very wolves who violated her in the first place?
Nothing brings out their bleeding hearts like the rape of the minor. That warms their hearts for the rapists and their families like that of someone who has found a log cabin with a burning fireplace while walking for miles in a snowstorm.
It's the goosebumps kind of catharsis.
In 2020, a man, Vivek Patel, in Jabalpur raped a minor girl. He was arrested and then released on bail this year (2022). He went back and along with his friend raped the girl, who is 19 years now, at knife-point. They also videographed it and blackmailed her about uploading her video on social media. (Source: MP shocker: Woman raped again by accused out on bail / NewsBytes)
Do you see how the Rape, Bail, Rape "rinse and repeat" justice of the Indian courts works?
Judicial Quacks and their Restorative Justice hoax
But nothing beats the case of a 4-Year-old girl. Yes, FOUR YEAR OLD!
So, as per law the rapist and murderer of a Four-year-old girl was given the death sentence.
But the three-bench comprising Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi of the Supreme Court of India wanted to extend the "principles of restorative justice".
So how would that happen?
By providing an opportunity to the offender (it seems rather strange to even call the rapist and murderer of a 4 -year-old girl an "offender") to "repair the damage caused and to become a socially useful individual when he is released from jail."
And for good measure, the justices quoted Oscar Wilde with the view that "every sinner has a future".
It never crossed the justices' mind that just as there are different laws for different crimes, there are different types of sinners.
That criminal, whose future the Indian Supreme Court justices, were so concerned about was a pedophile who had raped and killed an infant. An infant!
There is still a bit of debate about whether pedophilia is a mental disorder...
Clinical definitions usually require distress or impairment if pedophilia is to be considered a mental disorder (e.g., the DSM-IV-TR) (American Psychiatric Association, 2000), but not ICD-10, which considers the sexual attraction to prepubescent children to be sufficient (World Health Organization, 1997). I will not enter the debate about whether pedophilia should, or should not, be classified as a mental disorder, in this commentary. Interested readers are directed to the December 2002 issue in the Archives of Sexual Behavior for commentaries on this debate (e.g., Seto, 2002, where I argue pedophilia should be a mental disorder). (Source: Is Pedophilia a Sexual Orientation? / Archives of Sexual Behavior)
.. or a paraphilia and sexual orientation (just like being gay or lesbian).
Check this article in Journal of the American Academy of Psychiatry and the Law Online June 2020, where the author discusses the difference between paraphilia and orientation and what is the correct perspective.
Bottomline - contrary to what the arrogant know-it-all quacks of the Indian Judiciary - the Justices - may imagine pedophilia is INCURABLE! Just as much as being Gay is incurable.
For, these are not diseases or ailments.
Pedophilia is a sexual orientation.
Just like a gay man is sexually attracted to another man, a pedophile is attracted to an infant or a kid.
It is how it is.
But how do you explain to a bunch of quacks who like to:
- rubbish science
- use arbitrary means of analysis
- consider the marriage of the criminal and the victim as justice
- promote restorative justice by rehabilitating pedophile murderers back into the society
But the megalomaniacal judiciary fancies itself as the protector of the people and therefore loves judicial review as its signature method. For, it can enter areas it wishes even when it may not have people's mandate.
Political Question Doctrine
There is another doctrine that needs to be looked into. The Political Question Doctrine.
The American legal world has discussed this and contemplated on it.
In Baker Vs Carr, the US Supreme Court has laid down six factors which decide the political question.
In the Indian context, it has rarely been referred to. Once Justic YV Chandrachud had discussed it State of Rajasthan v Union of India.
In the United States, De Toqueville noted as early as in 1832 that sooner or later every political question becomes a judicial question. Leo Preffer therefore thought that though when the Supreme Court decided Constitutional questions it had the trappings of a Court of Law, "it is supreme, but it is not really a Court"(1). This is a wanting well worth remembering but it must not deter the courts from discharging their functions if they find that a constitutional power meant to be exercised for preserving democracy is being used for destroying it. (Source: "State of Rajasthan v. Union of India / IndianKanoon)
In another case Indra Sawhney Etc. Etc vs Union Of India And Others, Etc it was discussed.
Those words sound great. But the fact is that the justices have been undermining democracy not just by encroaching on areas that should be handled by the executive but also by sweeping high levels of corruption at the highest levels in the Supreme Court and the High Courts under the carpet.
For example, check this thread on Twitter, which lists the level of corruption.
It is in this context of incapability, arrogance, lack of rigor, arbitrariness, and self-importance that we analyzed the nepotism, concretizing of the Collegium system despite its inherent anti-democratic nature, Parliamentary Sovereignty vs Judicial Supremacy. Please do read it.
Now an extension of that threat is that the Indian Supreme Court bench is questioning the election of the Election Commissioner of India.
Judiciary beset with corruption champions interference in other branches
One institutional branch is now aiming to interfere in the structure of another by terming it a "Constitutional matter".
A body that refuses to have any accountability and literally runs the country, religious and social morality, norms, and principles that people behave by, without a people's mandate - wants to structure other bodies as per its own interpretation of the Constitution.
What is intriguing in this exercise is that Justice KM Joseph gave an example that hinted at a political angle. He seemed to be wanting the Election Commissioner to "take on the Prime Minister".
Suppose the Election Commissioner is asked to take on none less than the Prime Minister… we are just giving an example… And the Election Commissioner is so weak-kneed that he does not get around doing it. Will it not be a case of complete breakdown of the system,” Justice K.M. Joseph, heading a Constitution Bench, asked the government. (Source: "Election Commissioner shouldn’t be a ‘yes-man’: Supreme Court" / The Hindu)
The fact is that this bench wants to place one of the judges on the Election Commission. Maybe even as the Election Commissioner. So that its ability to interfere in the elections that decide the executive is made possible.
That is what the Center poked at.
A five-judge bench headed by Justice K M Joseph was told by Solicitor General Tushar Mehta, appearing for the Centre, "A presupposition that only with the presence of the judiciary, independence and fairness will be achieved, that is an incorrect reading of the Constitution. Mere presence of someone from judiciary will ensure transparency is fallacious statement." (Source: National Herald)
The presence of the Judiciary's entire strength has not saved justice to remain unserved in 50 million cases or from the courts being dens of systemic corruption.
- 'Eight Of The Last Sixteen Chief Justices Of India Were Definitely Corrupt' / Outlook
- India’s judiciary and the slackening cog of trust / The Hindu
- A Sneak Peek Into The Corrupted Indian Judiciary / Legal Service India
If Judiciary cannot keep its own house in order and with integrity, what makes one think it will not carry its dismal record of compromised values and quackery to other branches that it so eagerly wants to set right?
That is the question that we all need to ponder upon.
Here are the documentation and links that I saved as part of my research for an article. Many of these links I may have shared in my article and many I would have used in understanding the topics at hand. Beyond this newsletter, I tend to collate all my research even in the future into these sub-pages. So bookmark them for future reference. Please feel free to dive in and use it for your own analysis.
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