Liberal democracies cannot function without an institutional framework to protect the citizens from executive. As the central government becomes more powerful, it is expected that the courts shall stand up to it. What can happen to a democracy when courts look the other way was demonstrated during the infamous emergency period! Last few years there is a charge that the highest court is becoming an ‘executive court’, not a very healthy compliment in a vibrant democracy.
One of the first steps of the Chancellor after he was elected in 1933 was to dismantle an autonomous judiciary in Germany. Despite the deep rooted legal system, the Judges fell for ‘the demand of the hour’ call by the supreme leader. With the shift of power dynamics in 2014 in India, that process was initiated in a more sophisticated manner of amending the constitution to bring in a National Judicial Appointments Commission (NJAC) which the highest court believed would upset the judicial independence. The memories of supersession of Judges in 1973 and 1977 by a powerful PM must have weighed in their mind. The Government acting tough on the appointment of Gopal Subramanian may have also added. Arun Jaitley, the then Law minister termed the NJAC Judgement as the ‘tyranny of the unelected’, the fear was actually over the tyranny of the elected.
The Government tried to show red card to KM Joseph J (who ordered restoration of Uttarakhand assembly) and halted the march of Judges who passed verdicts against the ruling establishment. Akhil Kureshi J is one of them who will find his place in legal history books. Last seven years and half, the central government has lot to cheer about. The controversial matters like Rafale deal, Judge Loya case. Bhima Koregaon matters; freezing of abrogation of rt.370, status of J & K, challenge to electoral bonds, demonetisation and Habeas Corpus petitions brought silver lining. The farm laws and anti-laws also got the hospitality of the highest court.
CJI NV Ramana, CJI UU Lalit and current CJI brought some hope amidst dense cloud of scepticism. As the government faces some heat in demonetization, electoral bonds, appointment of election commissioners, Release of Anand Teltumbde, Gautam Navlakha, suddenly the Law minister is on a weekly rant against the higher judiciary referring to some Laxman Rekha drawn by the constitution. He referred to appointment of Judges as opaque, with no accountability and alien to the constitution. That may be some truth in that. Now the vice president of India has joined the chorus, the NJAC is the ordainment of the people at large and the Supreme Court had done away with the will of the people. The Union Law Ministers and high constitutional are expected to be constitutionally literate when they deal with the constitutional scheme of separation of powers. They cannot be permitted to continue their sinister effort of undermining the judiciary. The supremacy of the constitution is undisputed and cannot be challenged in a court of law “The people of the country, the organs of the state legislative, executive and judiciary are bound by the constitution, which is the paramount law of the land and nobody is above or beyond the constitution” (SC in Minerva Mills case). It only means will of the people is not higher than the rule of law. A majority in Parliament cannot undo the fundamental law. The vice president’s claim that
The strength of democracy has to be measured by the state’s commitment to dissent. Dissent is the favour of democracy. People are free to express their views but there has to be restraint on constitutional functionaries deriding the constitutional institutions. When responsible functionaries make irresponsible statements, the institutions’ credibility gets imbalanced.
The current CJI may have a point when he says the framers of the constitution made accountability an integral element with respect to the legislature and executive but consciously kept judiciary on a different pedestal. He claims they trusted the man and women who adorn the bench to uphold the constitution. All liberal democracies have entrusted the courts with that power of holding the powerful accountable. Though we have British form of parliamentary democracy, we have not accepted their type of parliamentary supremacy. There little doubt the highest court has the last word on what is within or beyond the constitution. That debate was laid to rest by the apex court by discovering the basic features of the Indian constitution and power of the courts being one of them. In pursuance of that power the constitutional amendment brought in to save Indira Gandhi was set aside.
To a large extent, whatever with all failings in the last few years, the courts continue to be the last hope for those in distress. The people believe that at the end of the tunnel, there would be some light. It’s time the highest court grows like it did in the two decades since 1990s. But that was also the period when the central government was perceived to be weak. The situation is different now.
As the PM is blessed by the people of Gujarat with a historic mandate in his home State, it is claimed PM are further strengthened in his quest for a third term.
A powerful executive requires a robust judiciary. It is expected that the Courts shall stand up as the last bastion of hope and do not take the path of least resistance. An acquittal on politically issues shall redeem their honour, prestige and credibility
(The writer is a practising advocate and a political thinker)
