Thursday, September 24, 2020
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Dear CJI, you can’t judge your own case

CJI TS Thakur´s recent outburst against Prime Minister Modi´s omission of Indian Judiciary’s condition from his Independence Day speech has evoked mixed reactions. Surprisingly, while some legal luminaries have criticized the CJI for disregarding the institutional sobriety to earn some cheap applause, opposition parties have lapped up this opportunity to launch a scathing attack on the government and media shops, as is their wont, tom-tomed this as yet another instance of government’s failure without presenting any nuanced reason for so concluding.

Earlier in April this year, CJI allegedly broke down during a Joint Conference of Chief Ministers and Chief Justices of High Courts in Delhi in the presence of Prime Minister Modi, driving home the serious strain in the relationship between the two important organs of the State i.e the Judiciary and the Executive.

Though the delicate balance between the independence of the Judiciary and the sovereignty of the parliament has come under a lot of stress in the last decades, but thus far it remained under the surface and came to the fore only in the last months with such public posturing made by the present CJI.

Why the Chief Justice of India is getting so worked up ?

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While the immediate cause seems to be delay in filling of vacancies and less than enthusiastic response by the Government to the list of candidates selected by the committee, some chaired by CJI himself, there is more than meets the eye here. In order to appreciate it better, let’s first get a historical perspective.

In the last decades, with the advent of weak coalition governments supported by corrupt political parties who were fearful of the Judiciary in view of a long list of pending cases against them, the Judiciary slowly expanded its power in contravention of the Constitution, at least in the spirit if not in the letter. It started in 1993 with the so called Second Judge case, consequent to which Judiciary assumed an absolute control over the appointment of judges to the Supreme Court of India and the High Courts of the states by introducing a Collegium system, which effectively eliminated any role of the Executive in such appointments.

Contrast this with pre -1993 situation, where the Executive not only had an important say on such appointments but in fact had the last word on it. Not to be misunderstood, this was very much in the spirit that was espoused by Dr. Ambedkar and other members of the Constituent Assembly. They had steadfastly opposed any veto power to the Chief Justices of India over the Presidential nomination of the judges observing that such would tantamount to granting unbridled power to the Judiciary and in fact, may harm the finely crafted inter-institutional equilibrium. So much so,  that in response to an amendment moved by another draft committee member, Prof. K. T. Shah on the need of an absolute independence of the Judiciary from Executive or the Legislature, majority of the members opined that in a modern state, such an absolute separation is neither feasible nor desirable. Further, it was deemed adequate to have the spirit of the original amendment reflected just in the Directive Principle of the Constitution, which only act as guidelines.

However the vision of founders of our Constitution notwithstanding,  growing timidity of the political class made Judiciary more and more defiant and it began appropriating decision making in areas which rightfully belonged to the Executive and the Legislative. Beginning with deciding on grey or unclear areas, it slowly permeated itself into the making of policy matters, which rightfully only belonged to the Legislative and the Executive. So, from a neutral arbiter on legality of such matters, you had court giving guidelines for its framing and then sitting in judgement of its validity.

Quite rapidly, egged on by an affluent civil society, the Courts began deciding on issues as diverse as natural resource management, transport, economics, education, wildlife, social behaviour, sports bodies etc. No doubt, the initial activism did win public applause in certain cases, such as with the introductions of the PILs which made the courts more accessible to the downtrodden section of the society or the issues where the political class was simply seemed to have developed cold feet due to the fear of popular backlash like ordering all commercial vehicles plying in Delhi to run on CNG or demolition drives on illegal encroachments. But, the question that begets asking is all this judicial activism came at what cost and to what end?

Judiciary instead of trying to mend the gaps as a result of fragmented and weak polity took potshots at it; in some cases even discrediting it and thus, encouraging a perpetual decay of the authority of the other organs of the State (which as a byproduct would have only made the Judiciary more powerful). Absence of a strong defense of its own territory by the Executive and the Legislative, only aggravated the situation.

In a nutshell, the Judiciary just got used to get its way in wake of a declining political authority.

Is Modi Government unfair to the cause of the Judiciary?

The Judiciary imposing its will went on unabated until the Narendra Modi led NDA government took the reign of this country in its hand. Armed with an overwhelming majority, it showed tremendous backbone to take back the control as envisaged by the founding fathers of our Constitution who regarded the doctrine of separation of powers, mooted originally by French scholar Montesquieu, as an important guiding principle of the constitution yet intertwined them with overlapping roles and responsibilities partly to emphasise that in a democratic country, the will of the people is sovereign.

In August 2014, NDA government passed the National Judicial Appointments Commission (NJAC) Act. In fact, the Manmohan Singh led UPA II had already laid a solid foundation for the bill and the Modi government carried forward this work in progress with even greater determination. The constitutional amendment was passed with an overwhelming majority amidst a rare display of political unity.

The Act provided for the replacement of the present Collegium system with a judicial commission which was to be more representative. In a rapid turn of events marked with unusual alacrity, a constitutional bench of the Supreme Court struck down the Act terming it unconstitutional. Without going into the merits of the decision, it does seem odd that an institution will be its own adjudicator and summarily reject any suggestion of introspection and remedy.

As a side note – the Congress cheerleaders supporting this position of the Supreme Court should listen to their numero uno leader and the first PM of India, Nehru, who said, “No Supreme Court, no judiciary, can stand in judgement over the sovereign will of Parliament”.

Eventually, with the government firmly standing its ground on having a say in the appointments,  SC did offer an olive branch to the government, suggesting it to draft a Memorandum of Procedure (MoP) which could direct the appointment procedure of the judges. The initial draft, prepared by the government and sent to the Supreme Court for review, is now back with the Law Ministry with SC disagreeing with many of its clauses. According to the reports, as things stand today, both parties are locked in intense battle for one-upmanship on certain clauses of the MoP. Pending its finalization, the filling of the vacancies in higher Courts (that seems to have got CJI’s goat), has come to a grinding halt. It will be wiser for all sides to make a concerted effort to solve the gridlock and evolve a consensus over the MoP in the spirit of our Constitution makers. This is as much a responsibility of the Judiciary as of the government.

Are the unfilled vacancies the only issue facing the Indian Judiciary?

Going by the discourse in the last days in media shops and its lapdogs, it appears that all malaise within the Indian Judiciary is limited to just with these vacancies.

Is it really so?

Any objective analysis will reveal that the rot within the Indian Judiciary is much deeper, ranging from inefficient and corrupt lower Judiciary, lengthy judicial processes delaying judgments perpetually, lack of accountability, blatant nepotism and rampant intimidation in the name of contempt of courts.

By not speaking on these issues and sermonizing the Executive and the Legislative (which by the way has become mainstay of judicial pronouncements in last years), the judiciary has only exposed its hypocrisy.

Unfortunately, we have seen little or no effort from the higher judiciary to address these concerns. The Judiciary is fully independent and competent to act upon such as it deems fit and government can do nothing to stop it. Public at large expects CJI to make demands from the government, but it also hopes that some day it will not have to travel hundreds of kilometres to attend to a court hearing only to discover that the concerned judge has decided to take a day off. That someday precious resources of the Judiciary will not be wasted to get Rakhi-Sawantesque limelight like with the recent prohibitive decision on IPL matches in Maharashtra. That court monitored SITs will not be formed at the drop of the hat with sitting judge at the helm of affairs.


India is governed today by a man named Narendra Damodardas Modi, who seems not to be the one to get impressed or intimidated by either theatrics or threats. Therefore, CJI will do well if he were to appreciate the fact that a strong political dispensation with equally strong desire to reclaim and reassert the moral authority of the Executive is now running the country and the Judiciary can no longer overrun it.

History has shown that Indians will not tolerate excesses from any organ of the State when it comes to the Constitution and certainly, no sane individual will ever question the need for a fully strengthened and independent Judiciary. Therefore, yes, while CJI’s concerns do find an echo in the public, he must also ponder and introspect whether he really wants to drag his institution into a futile confrontation with the government, representing the sovereign will of the very same people, effectively saying my way or the highway to achieve his goals.

Lest we forget, Montesquieu, who gave the principle of separation of powers, also said absolute power corrupts absolutely. 

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