John Keane is a 'political scientist' from Australia who coined the term 'monitory democracy' to mean some paranoid shite about how citizens be like 'monitoring' the Man all the time even though this had become impossible thanks to the 'War on Terror' and the privatization of the National Security State. The payoff for Keane was that stupid professors could get to admonish Democracies and feel they were doing something important. But Keane didn't even understand that Putin really was a despot. Keane thought the guy simply wasn't being 'monitored' enough. Otherwise he was no different from Orban.
It is now clear that Keane understood nothing about the age we live in. Debasish Roy Chowdhury is a journalist. He gets paid to tell what everybody knows to be stupid lies for a reason it is easy to understand. Democracy is monitoring him too much and so he needs money to buy a soothing ointment and thus has to write stupid shite.
These two teamed up to cobble together a book claiming that India was turning into a Despotism. Sadly, the US and Australia need India for 'quad', so their book was a damp squib. OUP decided not to publish it in India- presumably on legal advise.
Scroll published this extract from their book-
Tensions between the executive and judiciary
must always exist if they are separate. This is certainly true of a Monarchy. However, in a Parliamentary Democracy such tensions may be minimal or easily resolvable by legislative action as, indeed, was the case for the UK and other similar polities prior the creation of the British Supreme Court on orders from Brussels. It is likely that the judiciary's role will diminish or a more capacious doctrine of political question will be upheld. However, some laws established by international treaties will have to be scrapped or their scope must be reduced by legislative action. The problem here is not lack of capacity, it is that politicians prefer to pass the buck to the judiciary. Judges in England and Wales gave up 'contempt' as a remedy for themselves because they understood that the Government wanted Press Lords to divert anger away from the Cabinet to the Bench so as to appear to sympathize with the 'flog 'em & hang 'em' brigade while abiding by civilized norms.
are to be expected and welcomed in a democracy where those who exercise power, as the famous eighteenth-century French writer Montesquieu said, can be expected to abuse it,
There was no fucking democracy in Montesquieu's time. How ignorant is Keane? The fact is, laws should be well drafted and inter vires. That's not rocket science. It is part and parcel of the legislator's job description. Only if laws are shittily drafted will there be tensions. Similarly, officials have a duty to act in accordance with the law. This is another reason that laws and policy statements should be well-drafted. Good governance will create and observe bright line distinctions. At the margin, Court's may weigh in to help the process. This does not create 'tension'.
A King may be annoyed by a Judge who opposes his arbitrary actions. That is because there is a thymotic aspect to monarchy. Nothing similar obtains in a democracy.
so power must always be used to restrain and temper power.
This is nonsense. The Chief Justice does not punch the President in the gut and then force him to cancel an illegal ordinance. What restrains and tempers the exercise of power is prudence and rationality. It makes sense to have separate, protocol bound, juristic or professional procedures to embody different types of prudence and rationality. Thus a Corporation has a bunch of trained lawyers in its Legal Dept. as well as a bunch of trained Accountants as well as trained Engineers or other qualified Professionals. Such Corporations thrive where there are independent Courts and an independent Accountancy profession and Engineering profession and so forth.
Why does Keane not know this? How fucking stupid is he?
The relationship between the executive and the judiciary has since those initial years of the republic, till recently, been one of an uneasy compact, in which the two kept each other at arm’s length, but without giving each other too much room.
Fuck off! The Indian executive and judiciary have been very cozy- perhaps too cozy- with each other. In Pakistan, there was a stand-off between a Dictator and a Chief Justice. Nothing similar obtained in India. One High Court Judge tried to fuck with one PM. Then the Bench as a whole crawled when they had only been asked to bend. Later, every rustic retard of a politician learnt to kick the can into the lap of the Bench so as to say 'sab kuch sub judice hai. Main kuch nahin keh sakta'- 'everything is sub judice. I can't utter an opinion'.
That’s what is stipulated by the democratic principle that nobody is above the law,
Keane is a nutcase. It was established in the Seventeenth Century that the King is not above the law. If he wages war on his own people, his head can be cut off by due process of law. There was no fucking democratic principle back then. The democratic principle is that a large section of the populace may be declared outlaws. When the American Revolution succeeded, loyalists had to run the fuck away.
that authorities must constantly be scrutinised and tested,
Nonsense! There is plenty of case law showing the opposite- e.g. Hein v Freedom from Religion. The executive has capacious immunity by reason of 'political question' or lack of justiciability. Individuals are welcome to scrutinize any shit they like. They can bring nuisance law-suits in plenty. But sooner or later, they will be dismissed as crack-pots or vexatious litigants.
so that in the age of monitory democracy, when democracy has come to mean much more than free and fair elections, the public monitoring and restraint of arbitrary exercises of power by bodies such as independent courts is vital for the freedom, equality, and well- being of citizens.
This was a claim made by some virtue signalling bleeding hearts who then discovered that what was sauce for the goose was sauce for the gander. Their opponents could use the same tactics against their own shibboleths. 'Activism' was a double edged sword. Now it looks as though 'Roe v Wade' will be toppled. Next will be 'Sullivan v NYT'. In India, the Bench ordered the compilation of the Nationality Register and suo moto opened detention centers. Then, in 2016, it declared J&K had no 'shred of sovereignty'. Finally there was the Ayodhya judgment. What comes next? Constitutionality of hijab ban? Change in halal law? All sects being able to avail of 'minority' status? Who can tell?
In 1973, along these lines, in the famous Kesavananda Bharati case, also known as the Fundamental Rights Case, the Supreme Court asserted the right of the courts to strike down constitutional amendments that violated what it called the “Basic Structure”, or the fundamental architecture of the Constitution.
But its subsequent actions showed there was no Basic Structure. That remains the case. If the Government doesn't like the Bench's interpretation, it can force the issue- provided it can get re-elected with a big enough majority.
In subsequent years, it delivered significant rulings on matters that it held pivotal to this “Basic Structure”, such as secularism and the judiciary’s independence in appointing judges.
It suited politicians to kick the can down the road into the Court's precincts. But it may suit politicians to kick the Court in the pants. Anyway, Judges have post-retirement sinecures to think about. They can't go 'pratiloma'- against the prevailing ideological wind- without losing salience even during their tenure. This is because cases can always be delayed till they are out of the way.
The executive hit back periodically by blocking the career path of judges who issued inconvenient rulings.
It is the post-retirement sinecure which concentrates minds.
The intended separation and mutual contestation of powers preserving the architecture of India’s brand of monitory democracy was well served and honoured. Except for times when the judiciary opted to fall tamely in line, rather than push back.
Fuck was its incentive to 'push back'? It is always possible to delay matters so that any particular judge or coalition of judges gets nothing to decide.
These were the dark and foreboding moments that spelled long-term danger for Indian democracy.
But Indian democracy does not depend on the Courts. The Election Commission matters. The Bench does not. Why pretend otherwise? What is the point? It was the Court which opened detention centers. It was the Bench which affirmed the property claim of a Hindu temple deity. Where is the 'long-term' danger of an almost entirely Hindu Bench being at odds with an overwhelmingly Hindu population?
The bleakest of them all was the famous “ADM Jabalpur” case in 1976, when a five-member Supreme Court bench ruled that personal liberties could be suspended during the Emergency that Indira Gandhi had imposed.
The sad truth is that extra-judicial killing on an industrial scale is the ultimate source of security for the Hindu majority in a Democracy which only exists because Hindus needed elected representatives to get rid of stupid caste based rules of a 'holier than thou' sort. In other words, Hinduism featured status competition of a stupid and wasteful type. Hindus wanted Hindutva and that is what Hindus are getting in a more ample form. There was a time when Marxism was supposed to be a magic formula and we were cool with that. But Marxism was nonsense. But so was Harvard type pi-jaw. It is interesting that Harvard students have voted to get rid of their own stupid, virtue signalling, 'student government'.
In a majority ruling of four to one, the judges upheld the executive’s prerogative to detain people and ruled that the right to life and the remedy of moving a habeas corpus (“to produce the body”) petition for release against illegal detention didn’t hold during a period of emergency rule.
Fuck did the Bench do when tens of thousands were slaughtered in Punjab? Sweet Eff A. Extra judicial killing is the way to go in a genuine Emergency.
A habeas corpus petition, a vital instrument against state coercion, allows judges to order the authorities to bring the accused before their courts to verify if they had been detained in accordance with the law. During the twenty-one-month Emergency, the ruling that liberty was not an absolute freedom, that even the right to life could be suspended in extraordinary circumstances, enabled indiscriminate arrests of Indira Gandhi’s political opponents.
But those arrests enabled those nutters to take power from her. Indian politicians aren't stupid. They know that a spell in jail is their ticket to the top table. Look at Sadhvi Prayag. She was falsely jailed as a 'Hindu terrorist'. Then she defeated Digvijay and is now sitting in Parliament!
The lone Supreme Court judge on the five-member bench who dissented against the four-to-one majority ruling was denied elevation to the position of chief justice. Sixteen judges from nine High Courts who had earlier upheld personal liberties were also sidelined.
Keane does not understand the difference between dynastic rule and democratic rule. Neither does Congress. OMG! Now PK is out, Rahul baba should ask Keane to come and organize his Mummy's Party!
Soon after Indira Gandhi lost the election in 1977, the opposition alliance that rose to office passed the 44th constitutional amendment. It reversed the despotism of the previous habeas corpus ruling by upholding that the right to life could not be suspended, not even during an Emergency.
Because otherwise their own new-found allies might plot against them and send them to Jail.
But the ghost of ADM Jabalpur was to live on, until late 2017, when a nine-judge Constitution bench finally overturned the “seriously flawed” ruling. ADM Jabalpur, it said, was an “aberration” that needed to be “buried ten fathom deep with no chance of resurrection”.
This was in Puttaswamy. However the weasel word in 'authority of law' is 'law'. This can be whatever a future Bench decides is compatible with Basic Structure and their own post-retirement comfort and glory.
The plain fact is that the Indian judiciary is shit. It is literally beneath contempt. These cretins think a diplomat can waive his own immunity! Shit Judiciaries get disintermediated one way or another.
Within two years, however, the old ghosts of the Emergency rule returned. Habeas corpus stirred back to life from “ten fathom deep”, in historian and constitutional lawyer AG Noorani’s words, as “habeas carcass”.
Noorani thought J&K had some sovereignty. The Bench decided otherwise in 2016.
In August 2019, with the stroke of a pen, [Narendra] Modi’s government revoked the autonomous status of the restive state of Jammu and Kashmir.
Because of the Bench's decision three years previously.
The federal government stripped it of its statehood and split it into two federally administered units, without the consent of its elected representatives.
It had none. It was under President's rule.
It imposed an information blockade by shutting down telephony and the Internet, and put thousands of Kashmiris, including all its political leaders, in detention.
The draconian Public Safety Act of 1978
passed by Sheikh Abdullah
allowing preventive detention – modelled after the colonial- era Rowlatt Act that once galvanised protests led by Mahatma Gandhi – was back with a vengeance in independent India, used indiscriminately to imprison even young boys.
precisely because J&K had a separate status. Sadly, this was not superior, it was inferior, to what other states in the Union enjoyed. The fact is that 'proportionality' was met in 'J&K' because there genuinely was a big Pak-sponsored terrorist threat.
Under determined government pressure, the Supreme Court simply chose to look away.
It had no legal grounds for doing otherwise. The fact is the petitions put up to it were ill drafted shite. Nobody has bothered to bring a proper challenge. Why? Because you would have to show that there has been a decline in the terrorist threat and thus executive action is disproportionate.
In a political system already showing clear signs of a slide towards despotism,
But this could be said of all political systems at all times! In an Anarchy where a goose or groundhog is chosen to choose between alternative solutions to coordination problems, people may complain that the goose or groundhog is showing signs of despotism if they have been disappointed with its decisions on the last few occasions.
the court’s inaction allowed the government to get away with a move already made by despots in Hungary, Poland, Turkey,
U.K, U.S, and every other country from Austria to Zambia.
Russia, and elsewhere:
Does Keane think Putin ever trembled with fear before the majesty of the Russian Courts? What about Chairman Xi?
The plain fact is that no despot fears a Judge. A Judge and his family fear the despot. Why pretend that North Korea's ruler could easily be checked by the North Korean Bench?
The plain fact of the matter is that the Indian Bench may be as stupid as shit but it is still smarter than John Keane. If it doesn't do what he thinks should be done, there is a good reason for it. On the other hand, it is certainly true that it is only because of the inaction of the Irish Supreme Court that my own claim to be the King of Iyer-land (as that country should properly be called) has not been upheld. Why is a fucking half-Marathi leprechaun like Varadkar celebrated in Dublin while I can barely afford a pint of Jameson at my local pub?
to tame the judiciary to the point where executive power guts constitutional precepts and rulings to ensure that the courts are the playthings of the reigning political powers.
What is worse is the Modi has tamed over 80 per cent of the electorate to the point that they have got it into their heads that they are Hindus! Why has the Bench not prevented this? Until and unless all Indians unanimously decide that John Keane is not a cretin, there can be no doubt that India is a despotism. Montesquieu must be rolling in his grave! This is not because A.G Noorani is committing necrophilia on that long dead French dude. It is because Montesquieu is totally opposed to despotism of Modi & Shah. Sadly, due to being dead, he is rather inactive. Modi has tamed him.
To the multiple habeas corpus petitions challenging preventive detentions, the Supreme Court issued “permission” to petitioners to travel to Kashmir and meet the detainees in question, even though there have never been any legal restrictions on internal travel in India.
So, that permission was legal. What is wrong with that? It gives one a certain standing to say that one has the permission of a venerable authority to undertake a particular activity. The utility of this 'permission' is immediately obvious. But not to Keane because he is probably rolling around in Montesquieu's grave hoping to bump into Noorani.
The court even placed conditions on petitioners, instructing them to avoid any political activity while in Kashmir.
This was perfectly sensible. The meaning is go, with our permission, for the stated purpose and we will hear your findings. But good faith will be violated if your trip is for some other purpose. This is perfectly understandable. If these guys go and instigate something with a view to gaining evidence then, clearly, it is fruit of the poisoned tree.
It is easy enough to misinterpret a judgment and to make out that it is unfair or corrupt or shows extreme callousness. But if you do this in a stupid manner people decide you are stupid.
The Supreme Court thus not only abdicated its duty to protect fundamental rights by asking the executive for justification of its actions in Kashmir.
Because of 'proportionality'. That is what is important here.
By seeking to enforce some of the clampdown regulations, it became an arm of the executive.
Did judges go around arresting anybody? No. So they weren't the 'arm of the executive'. Does Keane really not know that Judges don't go around enforcing shit? Policemen or Bailiffs do so.
If institutional checks and balances are intended to keep the executive and the judiciary on their toes,
They aren't. Competition for votes keeps politicians on their toes. The judiciary could be kept on its toes if it worried about being disintermediated. France carried out some reform of contract and other law because it thought it was losing business to Anglo-Saxon jurisdictions. The Indian judiciary, however, is simply horrible. But then, 'lawyer' in India means 'hooligan' when it does not mean 'Son of Belial'.
and to prevent arbitrary exercises of power, tensions between the two should serve a democracy in good stead.
This is a crazy doctrine. Democracy thrives when there is rivalry between political parties and personalities within political parties. Voters punish parties which pass badly drafted laws or create inequitable or burdensome institutions or mechanisms. The Courts can clarify matters and resolve disputes. But they play no vital role in preserving Democracy. A country may lack effective elected Government for decades on end because of Parliamentary deadlock while the Civil Service and Judiciary do a good enough job. Though a Democracy in name, the Country is actually ruled by an epistocracy of an institutional type. Proportional Representation may increase the likelihood of this outcome.
With Modi’s rise to power in 2014, tension turned into open war between the two wings.
But nobody in India noticed because this war was wholly imaginary.
Within four years, the Supreme Court found itself in uncharted territory, when four of its most senior judges called a press conference and alleged government meddling with judgments.
What was the outcome? Nothing at all. Nobody cared. The allegation was that a Judge had been killed by his fellow judges. It was prima facie absurd. The Chief Justice had assigned this ridiculous case to some other judge. Basically, these 4 stooges ended up looking stupid. However, one of them Gogoi, did very well for himself. My point is that respect for the judiciary has disappeared in India. Prashant Bhushan was fined only Rs. One for saying that the Bench were a bunch of corrupt, bigoted, cretins. It is foolish to think that Indians have any respect for lawyers or judges. Law suits only have nuisance value. They are a tool of harassment or virtue signalling.
The chief justice, they felt, was not working independently and was using his privilege as the “master of the roster” to assign important cases to specific, “reliable” judges in a way that predetermined their outcome to the satisfaction of the government.
Or to prevent these lunatics fucking up.
“The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country,” Justice Jasti Chelameswar, the second-most senior judge after the chief justice, told reporters.
He can't get elected rat-catcher. He was elevated because he was stupid and useless and then had a brief moment of glory before reverting to being stupid and useless.
Incidentally, the current CJI was head of the Andhra Court and thus had some run-ins with the Reddy dynasty. Jagan has brought in Chelameswar's son as Additional Advocate General as part of his fight with the CJI and his own State's judiciary.
Democracy will politicize the Bench sooner or later. It now appears that State Governments want power over their own Civil Service and Judiciary. My guess is that this will de facto obtain.
Two months later, he shocked the legal community with a letter to the chief justice, asking him to convene a full court to take up the issue of executive interference in the judiciary, warning “bonhomie between the judiciary and the government in any State sounds the death knell to democracy”.
The guy had been unlucky in that Misra took oath as SC judge before he did. Thus Misra had seniority and got to be CJI. Only by harassing Misra till he had a heart-attack and resigned could Chelameswar get to be CJI. As things were, he'd time out before the job fell vacant again. Indians are familiar with this type of rancor. It is interesting that Ranjan Gogoi stood with him on this. But Gogoi got to be CJI and then entered the Upper House.
The chief justice was a member of a team of four senior judges who comprise the all-powerful collegium that takes the most important decisions related to India’s higher courts, such as promotion, appointment, and the transfer of judges. The federal government is required to act on the recommendation of the collegium.
These cretins don't know that there is no 'federal government' in India. There is the Union Government or the 'Center'. It is not required to do anything it can otherwise stymie or prevent- which, believe me, is pretty much anything.
The unusual protest by the country’s most senior judges marked the apogee of a simmering turf war with the government,
there was a walk-over. There was no war.
which had been trying to end the collegium’s monopoly in judge-related matters by instituting a panel called the National Judicial Appointments Commission (NJAC) designed to give the executive a say in judges’ transfers and appointments.
The NJAC Act was the first piece of legislation that Modi’s government steered through the Parliament after he took office in 2014. But the Supreme Court upheld the collegium system and struck down the NJAC Act,
Chemaleshwar dissented. He was hoping to become CJI.
keeping the power of promotions and appointments with the judges, and maintaining the separation of powers between the judiciary and the executive.
The NJAC Act gave too much power to Judges. Anyway, a couple of years in Delhi is enough to show you that the problems of the Judiciary run wide and deep. Still, it suits everybody for the Bench to continue its precipitous decline in prestige- or just basic sanity. What will happen after 2024? Will India get a decent judiciary? I'm not holding my breath.
One of Modi’s senior ministers called the verdict “the tyranny of the unelected”, and the government retaliated by sitting on collegium recommendations on judges even as vacancies piled up, using its veto power, not unlike some of its predecessors in similar battles of nerves with the high priests of justice.
Who fell out with each other and then were held up to public ridicule and contempt by failed politician Prashant Bhushan.
A chief justice breaking down in public was a sign that their lordships weren’t winning.
It was a sign the guy was kray kray.
By the end of his tenure in 2016, the number of vacant posts for High Court judges had risen to nearly 500, with the government declining most of the recommendations by the collegium. His successors might well have concluded that for the sake of peace and quiet it would make more sense to abide by the government’s wishes.
Or to make more sensible choices. The fact is Supreme Court judgments on important issues- e.g. river water sharing- got ignored. The Bench had to do something to earn its bread otherwise it would have been left to rot. Judges would have been put under the Lok Pal. They would have been harassed from dawn to dusk.
Courts are dependent on governments both for the implementation of their orders and the resources needed for their sustenance. Especially when the courts are losing legitimacy in the eyes of citizens, governments can bring the judiciary into line using blackmail, withdrawals of favours, and threats of funding cuts.
Only if the judiciary is doing nothing useful. If CMs ignore the orders of the Bench, why should the PM bother with the CJI? He is bringing nothing to the table. Just put him under the Lok Pal and let him get used to round the clock harassment.
Balancing legal principles with the government’s sensitivities as a way of judicial self-preservation is thus built into the system.
No. Either the Bench does useful stuff or it will get disintermediated. Gandhi protested against the Salt Tax 92 years ago. There is still a Salt Bureau. Similarly, there would still be a Bench employing some retarded people in some dingy office somewhere. But, because it wasn't paying for itself, it would have been left to rot.
Nobody probably understood this better than Ranjan Gogoi,
who is an Assamese aristocrat with decided views on 'infiltrators'.
one of the four protesting judges at the peak of the 2018 tussle between the executive and the judiciary. Gogoi was soon to take over as the next chief justice. By the time he finished his stint at the top of India’s judicial pyramid two years later, the collegium had become far more collegial towards the government’s preferences for judges in its recommendations for transfer and appointments.
Why? Because it was clear that Congress was dead and buried. The previous patronage eco-system had collapsed. Anyway, these were Hindu dudes giving the Hindu majority what they clearly wanted.
The executive-judiciary status quo was radically transformed. It went from one of guarded cordiality interspersed with periodic friction into a relationship of active collaboration – to the point that the two sets of institutions sometimes looked like conjoined twins, as in the established despotisms of governments led by Viktor Orbán and Vladimir Putin.
or Merkel or Macron. The UK may abolish the Supreme court which has only been running for about a decade. Biden is under pressure to bring the US Supreme Court to heel.
The truth is Democracy needs an effective Election Commission, robust competition between political parties, and a sensible voting rule. The quality of its Judiciary doesn't matter too much. Why? Democracies can either fix what it is useful to fix or it can disintermediate what is unfixable. That includes rancorous Judges, like Chelameshwar, or stupid Academics, like Keane, or facile presstitutes like Roychowhdry.
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