American jurist Alexander Hamilton described the judiciary as the least dangerous branch of the State. It does not have the ‘purse’ or the ‘sword’. It is heavily dependent upon the executive and the legislature, even for its subsistence. Yet, it must carry out a counter-majoritarian function in a Constitutional democracy. This dialectic poses serious issues relating to the independence of the judiciary, which is an idea, a rhetoric or sometimes, a wishful thinking.
There is, however, an opposite view, at least about the Indian Supreme Court. Many take it as the world’s most powerful Supreme Court. Its power to exercise judicial review of the executive action and inaction is phenomenal. Its authority to strike down a law when it is not in tune with the Constitution is equally formidable.
The court, as an institution, is not static. It has a democratic metabolism which is contextual, contingent, and transitional. Its response towards the majoritarian assertion, within the limits of the Constitution, decides the course of democracy in critical times. The court plays a vital role in presenting the checks and balances between the conventional wings of democracy and their institutions. The primary purpose of the Constitution is to limit arbitrariness and abuse of authority. Since the executive runs the risk of concentration of power, a judicial check on it is a Constitutional imperative.
In recent times, the Centre’s criticism of the judiciary has been on varied topics—ranging from the collegium system to court vacations. Chief Justice Chandrachud’s remarks on the apex court’s duty to protect individual liberty, and the stern posture taken by the Justice Joseph-led Constitution Bench during the hearing on the appointments to the Election Commission, have had the effect of further provoking the political executive. These are, to my mind, timely judicial assertions which were made correctly and appropriately.
There is a feeling that the fissure between the executive and the judiciary is bad or unhealthy. It need not be so. One should bother more about situations when they go hand in glove, negating the ideas like division of power and judicial independence. Article 50 of the Constitution specifically mentions that the State should take steps “to separate the judiciary from the executive in the public services of the State”. The fusion between the two wings was found antithetical to our Constitutional scheme. This separation intends to have occasional friction between the elected wing and the counter-majoritarian wing. Therefore, the present tussle is indicative of the vibrance of Indian democracy, which is otherwise sick.
The judiciary–executive tussle in India has a long history. The use of law-making power against judicial assertions started with the very first amendment to the Constitution. The majoritarianism started with Nehru, flourished during the time of Indira Gandhi, and the executive aggrandisation in India reached its peak during the National Emergency. That created a “committed judiciary” which precisely meant the annihilation of a free judiciary. Today as well, there are executive courts and executive’s courts, as lawyer Gautam Bhatia rightly called them.
One finds them when hearings in the most significant cases were deferred unjustifiably or when the court simply abetted executive highhandedness as it happened while cancelling the bail granted to scholar G N Saibaba. Instances of the judiciary acting against the Constitution manifested when the court upheld the exclusion of the poor Dalits from the ambit of the quota for the economically backward sections while upholding the 103rd Constitutional Amendment. Again, the court’s endorsement of the draconian provisions of the Prevention of Money Laundering Act was horrific. Significant matters ranging from Kashmir to demonetisation were not heard in time because of which the beneficiary of the delay, the executive of the day, could tell the court that those are now mere academic matters.
But, as Justice Krishna Iyer said in a different context, the court is people in judicial power. People vary, and philosophies and approaches also vary. The Supreme Court acted against the executive in freeing activist Teesta Setalvad. It exposed the egregious silence of the Centre in the Pegasus episode. It came down against the archaic and oppressive sedition law. It acted against the executive lethargy during Covid-19 and persuaded the government to rewrite its vaccine policy. Thus, the Indian judiciary has a mixed track record by the end of 2022. Its journey to 2023 is promising in as much as it engages in critical dialogue with the nation’s polity.
The court is not fault-free. Its collegium system in its present form requires to be replaced by a more democratised system. At least its own prescriptions for a Glasnost and Perestroika as indicated in the Fourth Judges Case should happen. The kind of homo-social morphing where the selector judge selects his own images for the Bench, as it often occurs, is terrible and unacceptable. The judiciary needs to introspect and make fundamental changes in the process of selection by accepting criticism. One may recall that suggestions for reforming the system leading to about 15,000 pages reached the Supreme Court in the Fourth Judges Case, which it simply ignored.
The judiciary faces threats from within as well. The fifth column that perpetuates the legal plutocracy, sycophancy and feudalism within the system is in no way better than the propagandist majoritarianism outside. The hierarchy in the legal system, starting with the unfair classification of lawyers, needs to be abolished to regain judicial democracy. The courts, including the Supreme Court, should not be the privilege of the rich.
Yet, the concerted effort to tarnish the judiciary, that too by elected representatives, ministers and others in high offices, does not look fine. A political agenda to defame, discredit and belittle the judiciary reflects an ideological strategy. It happens in continuation with the destabilisation of the other institutions ranging from the Cabinet to the Election Commission. It happens even by accusing the judges of availing vacation though they work hard even during the holidays, by doing research and writing judgments. It happens as the ruling party conveniently ignores its Constitutional role in governance. This is yet another instance of ‘deconstitutionalisation’ of our polity. This needs to be resisted democratically, politically, and constitutionally.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(Tweets @KaleeswaramR)