The nation just observed Constitution Day on November 26. It is also a day to assess the way our country is upholding the important document that is at the foundation of our Republic. It has been a fascinating journey for the Constitution and our institutions since 1949.
While the document and its majesty have grown on us over the years, it is also fair to say that, largely, the nation and its institutions have also grown with it. There have been periods of crisis but our commitment to our Constitution has trumped over all.
Ironically, the first challenge to institutions started in the very early years of independence itself when Jawaharlal Nehru tried to interfere with the judiciary only for Justice Harilal Kania, then Chief Justice of the then Federal Court to respond with adverse comments.
However, the most serious crises faced was undoubtedly in the seventies. While all the pillars of our democracy were under attack, the judiciary, which interprets the Constitution, was singled out for special treatment. Be it subtle and overt threats to upright judges or delivering upon those threats, undoubtedly, there was no trick that was not attempted.
The electoral malpractices case, ADM Jabalpur case, Justice Khanna’s stand, as well as the attack on individual rights and liberty stand out as headlines of that era. However, even in that dark period while there were people in the judiciary who were toeing the line of the then government, there were also those who stood with their head held high, upheld the values of the Constitution and paid a price for it.
Throughout the eighties, however, there was a concerted attempt to influence the judiciary by questionable appointments to the court. The rather infamous example of a career politician appointed as a SC judge, who later resigned to again contest elections being the most extreme example of this trend. It was these excesses that perhaps led to the 1993 judgement of the Supreme Court and the evolution of the collegium system.
The situation improved towards the end of the last century and the first few years of the new one.
However, this changed again with the era of ‘policy paralysis’ that set in during the middle of the first decade of the century. While the Executive suffered due to party politics, with the power centre being firmly outside the government, there were attempts of political interference even in the judiciary. If the ruling party had coalition compulsions, the judiciary too was sought to be pressured to ‘understand’ such compulsions and act accordingly.
It was the same time in which there were also allegations of corruption laid at some of the high positions in the judiciary. However, towards the end of the era of policy paralysis and by the time a new government came in 2014, the judiciary had regained its power and poise. Since then, an ideological phase of the judiciary has given way to courts that are not bothered by ideological expediency but largely evaluate cases on their merits.
Now, in the last few years, the judiciary is unafraid to say it like it is and it increasingly does not matter if key judgements are in the government’s line or not. A particular case may go in favour of the stand taken by the government as in the Loya case or may go against it as in the NJAC case, purely on the merits of the case and not on any preconceived ideas.
The judiciary has stood up for the individual right to privacy as well as given some progressive judgements to protect it. Whether it is the matter related to Aadhaar or its decision that resolved the Ayodhya judgement amicably or its verdict on the decriminalization of homosexuality, the judiciary has refused to fit any particular ideological pigeonhole.
However, it is this assertion by the judiciary, that it will not be the de facto opposition party to the current government in power, that has extracted a price. There are regular overt and covert attacks on the reputation of the judiciary by sections of opinion makers who would rather see the judiciary as an ideological construct of their liking instead of an independent institution. However, the way the judiciary has held its own in the last few years gives hope for the future for other institutions as well.
Justice S.N. Aggarwal
Former judge at Punjab and Haryana High Court