Further Strife with Judiciary Will Put Government’s Democratic Intentions in the Dock
King Solomon, the ancient king of Israel, was widely known for his sagacity and justice. His throne had a round top and two lions standing below each arm. Centuries later, Indian justice’s golden throne, the Supreme Court, delivered a judgment that protected the cornerstone of our democracy. A five-member Bench headed by Justice J S Khehar struck down the National Judicial Appointment Commission (NJAC) Act, which sought the government power in choosing judges.
The greatness of the Indian judiciary is an allegory of Solomon’s throne, nationally emblematic of India’s legislature and executive. There was, however, leonine disappointment over L’affaire NJAC. It was the Modi government’s first major encounter with the judiciary. But PM Narendra Modi should take the setback as signal for course correction by initiating a dialogue for reconciliation and accommodation rather than insolent confrontation.
The judicial burial of NJAC has, however, caused much animosity and anger in the ruling establishment. Justice Khehar made a significant remark in his judgment: “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured by keeping it absolutely insulated and independent from the other organs of governance.” He was echoing the voices and intent of the collective wisdom that gave India its Constitution. It’s no surprise that the idea of the NJAC was born out of political consternation after various courts brought many of the high and mighty to justice, sending Union ministers, chief ministers and top bureaucrats to prison.
The judgment showed the Indian judiciary continues to be courageous and outspoken. The reaction of the ruling party and its top law officers, however, was dismally churlish. Law minister D V Sadananda Gowda, an advocate himself, said, “I am surprised by the verdict of the Supreme Court on NJAC which was completely supported by the Rajya Sabha and Lok Sabha. It had 100 per cent support of the people.” Attorney General Mukul Rohatgi, who extensively argued for the government, echoed Gowda’s sentiment and termed it a flawed judgement “ignoring the will of the Parliament, half of state legislatures and the will of the people for transparency in judicial appointments”. Ironically, it is the BJP and its allies who have historically gained from judicial activism. Leaders like Atal Bihari Vajpayee and L K Advani have been champions of judicial independence. The BJP must remember that it is an independent judiciary that has corrected distortions in the functioning of the executive and restored the rule of law. In the 1970s, Indira Gandhi had rammed through various legislations, which she considered the Will of the Bill. Many curbs on fundamental rights during the Emergency were passed by the same Parliament, which adopted the NJAC. The will of the people is reflected in the Constitution of India as “We, the People.” Various judicial orders since Independence have clarified that the Constitution’s basic structure cannot be mauled to suit the political philosophy of a ruling party. Using convoluted arguments against the role of courts, politicians are suggestively selling the ominous idea that any elected government can demolish the judicature by invoking the Will of the People doctrine.
It is not for the first time that court verdicts have created a confrontation between the judiciary and executive and sometimes even with the legislature. Irked by judges’ vigorous scrutiny of government actions and legislations, politicians have tended to tinker with the judiciary’s powers. The current battle stems from the same desire to disturb the delicate balance of power between the judiciary, executive and the legislature. Undoubtedly, the collegium system to choose judges needs to be insulated against extraneous factors. But it has worked much better than the previous one for the past 22 years. Of the 2,000-odd appointments in high courts and the Supreme Court since 1993, hardly a dozen turned out to be bad apples. But if the NJAC is enforced, politicians will choose judges. By making the law minister and two other non-judicial individuals members of the selection panel, the executive can slip in people with dubious backgrounds. Can India afford to institutionalise a mechanism by which chargesheeted or tainted leaders are allowed to select top judges? What sort of Solomons would the country get if Yeddyurappa, Lalu Prasad, Azam Khan or A Raja becomes the law minister, either in their states or at the Centre? Is it not a possibility that by changing the system, those facing the rule of law would instal puppet judges to superimpose the rule of their masters on the system?
The judiciary’s role is well defined by the Constitution. Its responsibilities are to ensure the rule of law and to interpret the Constitution. People who are tempted to remove any checks on their lust for unlimited power cannot be allowed to choose judges. The Indian judiciary has delivered directions on issues like health, environment, crime against women and better education, which are not in our written Constitution. It takes over when the executive fails. Even now, the latter has the power to stall any appointment if it finds the candidate’s credentials unsatisfactory. The NDA government, too, prevented an eminent lawyer from becoming a Supreme Court judge for unexplained reasons. Any further confrontation with the judiciary will not only weaken India’s healthy democracy but also raise questions about the government’s democratic intentions. Like during Indira’s regime, there are many in the NDA who enjoy intimidating the judiciary to settle personal scores. They will push the PM to take the verdict as a challenge to his authority. But a strong and secure leader like Modi will succeed only by making hallowed institutions like the judiciary even stronger. History is an estuary of evidence, which shows that those who have fiddled with judicial independence have done so at their own peril.
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