The confrontation between the executive and the judiciary has always been a cause serious concern. Indira Gandhi asking for a committed judiciary resulted in the emergence of basic distrust between the Judiciary and the Executive in 1970s and it increased with the suspension of judges. There seems to be a struggle for power rather than a case of distrust. The most important reason is the power of appointment in any system has a certain element of patronage, although done on merit. The executive wants judges of their convenience to be appointed so that it is easy for them to make changes in basic structure of the Constitution but the judiciary wants to stick to the right it acquired in 1993.
This distrust has always marked Indian constitutional development.
The recurrence of indictments of the judiciary overreaching its powers in a democracy entails active distrust of judicial review powers and of the principle mandating limited governance. The growing powers of the Supreme Court to invigilate constitutional amendments and the power of judicial appointments have not been willingly accepted either by the executive or by the Parliament. They have urged, intuitively and normatively, that judicial process and power must pursue representation-reinforcing pathways; or, in other words, popular democracy, where people choose their representatives for a term comes first and must stay first. But any workable theory between democracy and distrust has not been developed.
Chief Justice of India T.S. Thakur, hearing public interest litigation (PIL) on August 12, 2016, remarked that, “The executive has for a long while been provided with evidence-based issues and recommendations on increasing the number of judges. But its response, or the lack thereof, to the issue is disturbing”. On October 17, 2015, this hostility came to a head after the apex court quashed the National Judicial Appointment Commission, or the NJAC, which was followed by episodes in Uttarakhand and Arunachal Pradesh, leaving the government embarrassed. The larger issue of who should be appointing judges and how they should be appointed continues to be debated with the revised Memorandum of Procedure not being finalised as the Supreme Court collegium and the Government have been unable to come to a consensus. The Supreme Court’s collegium system – one of the rare systems in the world where judges appoint themselves through an opaque selection process, whereas, Article 124 and 127 of the constitution say that judges to the Supreme Court will be appointed by the government, i.e., the President, in consultation with the Chief Justice of India. But the collegium system is the exact reverse: the judges decide who will be appointed judge, and the government just has to say yes.
The primacy of the judiciary in such appointments, though mentioned nowhere in the Constitution, has been established in the second and third judges cases of 1993 and 1998. The executive has not been pleased with the curtailment of its power and has been trying to reassert it from time to time. It had managed to bring the National Judicial Appointments Commission Act to replace the closed collegium system with a more transparent, broad-based system. But fiercely guarding its turf, the Supreme Court rejected it. Since then, both institutions have been in a tug-of-war.
Further, the kinds of some of the observations and orders the Supreme Court has been announcing regularly are a clear violation of the separation of powers between executive, legislature and the judiciary. So one has to ask whether the court, whose job it is to protect the constitution, is in breach of it mandate in spirit if not in letter. The Supreme Court’s job is to interpret the law and also ensure that the fundamental rights of citizens are not violated. It can strike down a law that it believes is not in keeping with the basic structure of the Constitution, but it has no right to be dictating what laws the government should make, and how they should be implemented. It is not the job of an unelected judiciary to tie down the hands of an elected government in the name of social justice, anti-corruption or any other populist slogan.
The Supreme Court needs to clearly delineate matters that are in its ambit and those that are not, as per the Constitution. Over the last 25 years, when weak coalition governments were the norm, the court got into areas normally meant for the executive. May be, the executive was happy to leave difficult decisions to the court, possibly to escape political responsibility for the same. But, there is now a government with the mandate and the numbers to take decisions. It is time the Supreme Court focused on what it has to do and let the government do what it has the mandate to do.
Some tension between executive and judiciary is inevitable and even good because their jurisdictions are not watertight. While Parliament has the unfettered right to pass laws, the courts have the right to check if these laws are in tune with the basic structure of the Constitution. This creative tension keeps both the executive and the judiciary on guard – and mutually accountable. But if this tension degenerates into open war and ego tussles, it can be ruinous for the country and governance. This is what both government and judiciary must seek to avoid.
To overcome distrust, executive has to ensure judiciary that it is not going to curb judiciary’s independence. Judiciary has to understand that there are other organs namely executive and legislature which are equally responsible along with the civil society and press. Judiciary alone cannot safeguard democracy. Judicial independence is a part of basic structure of the Constitution. It is not conceivable unless the executive ensures that the strength of the judiciary is adequate to discharge its constitutional duty of rendering effective justice to all within a reasonable time.
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