Judiciary-Executive tussle: Friction arising out of democratic functioning can be ironed out, but not turf wars

India’s first Prime Minister Jawaharlal Nehru who was perhaps the most influential member of the Constituent Assembly which brought the Indian constitution into existence on 10 September 1949 while speaking in the Constituent Assembly said:   Within limits, no judge and no Supreme Court can make itself a “third chamber”. No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately, the whole Constitution is a creature of Parliament. He was clearly talking about the need and importance of parliamentary supremacy.   Space of accommodation Between the two ends of parliamentary supremacy and the creation of an all-powerful judiciary that is often termed as “Judiciocracy” lies a space of accommodation—where constitutional values can be best cherished and practiced.   The space is indeed defined by an inherent tension that is common in democracies where the general will of the people and rule of law together play an important role. A legitimate and fair government makes all attempts to take decisions that reflect common will, whereas the court has the moral and legal obligation of scrutinizing these decisions.     However, what leads to the shrinking of this space is a conflict between the judiciary and executive that is guided more by a will to impose one’s supremacy rather than any bona fide consideration like the greater common good.     Continuous struggle between the judiciary and executive  Ever since the enactment of the constitution in 1950, India has witnessed a continuous struggle between the judiciary and executive to rein in each other, with episodes that culminated into acrimonious turf wars, leading to suppression of democracy and the constitution. Within a few months of the enactment of the Constitution, the Nehru government faced a slew of adverse court orders against some of its decisions like that of land reforms. The government reacted by bringing in the first constitutional amendment act in 1951. The purpose was straightforward and evident. The government wanted to shield its reform agenda from judicial interventions. ‘Who will tell the people?’ Tripurdaman Singh who has done a coruscating analysis of the first amendment in his book Sixteen Stormy Days: The Story of the First Amendment to the Constitution of India writes, “A major problem for the Congress, as Nehru stated in a note to the Home Ministry was explaining the situation to the people. Having raised their expectations and asked them to believe in the promises of Congress leaders, how were they to now go back to them and explain legal and constitutional niceties?.” “Who was going to tell the people that the word of the government and the prime minister was not the law, that there was now a greater power, the Constitution of India? And what might happen if they did?”, he adds.   According to Singh, Nehru wrote to his chief ministers stating categorically that there was no question of putting the reform agenda at the backburner no matter even if the constitution comes in the way and made it clear that the government will find a way out of this problem even if it means initiating amendments in the constitution.   Through the first amendment, the Nehru government introduced the ninth schedule in the constitution that tended to protect the land reform and other laws included in it from the purview of judicial review. Apart from this, it added three more grounds for restrictions on freedom of speech and expression which were public order, friendly relations with foreign states, and incitement to an offense. While the court intervention in the domain of the executive was the result of several petitions filed by citizens and social organizations challenging the government’s decision, the Nehru government’s decision to bring in the constitutional amendment was a clear sign of the government cutting down the judiciary to size. And, in this attempt, the origin of a tussle between the judiciary and executive can be traced. While the fact remains that the conflict between judiciary and executive during Nehru’s regime was more an outcome of friction arising out of the government’s attempt to fulfill the promise made to its electorate and the pressure of populist politics and a judiciary that was bound by the law to scrutinize any such move if challenged before the court. Turf wars The real tussle or more aptly the “turf war” between the judiciary and executive started with the ascendance of Indira Gandhi to the top of Congress leadership and prime ministership. Indira Gandhi who always saw the judiciary as the epicenter of her opposition did everything to subvert it.   From 1966 till 1977 when she was voted out of power following the two-year-long emergency she brought in several amendments with a single motive of subverting judiciary and minimizing judicial review. She brought in the 24th, 25th, 26th, and 29th constitutional amendment acts—all of which aimed at nullifying some or another landmark judgment by the Supreme Court. Like the 24th amendment was enacted to nullify the effect of IC Golakhnath’s judgment that rejected parliamentary supremacy as it held that parliament has no power to curtail fundamental rights. The statement of objects and reasons to this amendment makes it evidently clear that it aimed at establishing parliamentary supremacy. It reads, “The result of the (SC) judgment (in the Golaknath case) is that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has the power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power.” What can be termed as the defining point of the judiciary-executive tussle happened in 1975 when Allahabad High Court judge Justice Jagmohan Lal Sinha, acting on a petition filed by Raj Narain, set aside Indira Gandhi’s election to the Lok Sabha from Rae Bareli founding her guilty of electoral malpractices. The decision led to the imposition of a national emergency which is recounted as the darkest phase of Indian democracy. Before this event, the most infamous episode of judicial subversion during the Indira Gandhi regime was the supersession of two senior-most judges of the Supreme Court for the post of Chief Justice of India (CJI) on two different occasions.   The friction between the executive and judiciary saw its worst manifestation in 1973 when the Indira Gandhi government in total disregard of the constitutional convention recommended the appointment of Justice A N Ray as CJI bypassing the three more senior judges, Justices J M Shelat, K S Hegde, and A N Grover. The supersession was made a day after the Supreme Court pronounced the landmark ‘Kesavananda Bharati vs State of Kerala’ order, which formulated the “basic structure” doctrine.  It is important to note that Justice Ray was part of the minority in the 7-6 judgment of the 13-judge Bench. Again in 1977, Indira’s government superseded Justice H R Khanna by appointing Justice M H Beg as CJI. Justice Khanna who is remembered as the finest and bravest judge in Indian constitutional history was the sole dissenter in the ‘ADM Jabalpur vs Shiv Kant Shukla’ judgment in which the majority comprising Justices A N Ray, P N Bhagwati, Y V Chandrachud, and M H Beg agreed with the government that fundamental rights including the right to life and liberty are suspended during the imposition of emergency. Following the defeat of Indira Gandhi, the newly appointed Janta Government through the 44th constitutional amendment tried to restore the power of judicial review of the court. It was thought that subversion of the judiciary would end with the defeat of Indira Gandhi but the hopes were belied soon and the biggest reason for this was the judiciary itself. Justice P N Bhagwati who was the second most senior judge in 1980 sent a letter to Indira Gandhi on 15 January, 1980, after her re-election in which he wrote “May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as prime minister of India? It is a most remarkable achievement of which you, your friends, and well-wishers can be justly proud. It is a great honor to be the prime minister of a country like India.” The letter was widely circulated and criticized because it was glaring testimony of the judiciary bowing down to the government.   The return of Indira Gandhi in 1980 witnessed a period when the judiciary voluntarily surrendered to the government as evident from the fact that all special courts established to hold trials for emergency excesses were shut down and Indira Gandhi and her son Sanjay Gandhi who was accused of many excesses during the emergency period were given clean chits. Also, in what is popularly known as the ‘First Judges’ case the manner in which the judiciary accepted parliamentary supremacy was unprecedented.   In March 1981, then Law Minister P Shiv Shankar issued a circular that sought executive discretion in the transfer of judges. The government decision was challenged in the apex court. The petition also sought clarity regarding article 124 of the constitution wherein the procedure of appointment of judges is laid down, The Supreme held that consultation as stated in the article does not mean concurrence which meant that the President was not bound to make a decision based on the consultation of the Supreme Court. One would wonder what led the apex court to leave the discretion of the appointment of judges at the hands of the executive which had in the past subverted judicial independence in every sphere. Perhaps, one of the reasons was that the government had an absolute majority and the judiciary was playing safe. The apex court judgment was reversed in the ‘Second Judges’ case in 1993. In the ‘Second Judges’ case, the apex court brought into existence the Collegium system and assumed absolute power of appointment of judges within itself.  The Collegium system was further democratized and institutionalized in 1998 through the ‘Third Judges’ case. Following the consolidation of the Collegium system and judiciary assuming absolute independence in regard to its functioning and judicial review resulting from the ‘Kesavananda Bharati’ case, the Supreme Court and the High Courts gave many landmark judgments in the next two decades that followed.   These judgments played a significant role in strengthening federalism to ensure free and fair elections, from safeguarding individual liberty to protecting the environment to curbing corruption. National Judicial Appointments Commission However, the same period witnessed simmering resentment against the Collegium system with allegations of nepotism and corruption against the judiciary becoming a routine affair. The method of appointment of judges became a recurring source of friction between the executive and the judiciary and even before the Collegium system came into existence, an attempt was made by the VP Singh government in 1990 to establish a ‘National Judicial Commission’ for appointments in the higher judiciary. The constitutional amendment bill introduced for the same lapsed with the dissolution of Lok Sabha in 1991. After this, it was the National Democratic Alliance (NDA) that in the year 2003 introduced the 98th constitution amendment bill, for setting up the ‘National Judicial Commission’ for judicial appointments, and then the United Progressive Alliance (UPA) government introduced the ‘Judicial Standards and Accountability Bill’ in 2013’ to establish a new system of appointment of judges. But, both these attempts failed.   And, finally, the current Bharatiya Janata Party (BJP)government led by Prime Minister Narendra Modi passed the National Judicial Appointments Commission (NJAC) Bill in 2014. But it was struck down by the Supreme Court in 2015. The decision of the apex court to strike down a constitutional amendment after it was passed by the majority in both houses of parliament led to an acrimonious standoff between the government and executive which continues to date. After the NJAC verdict, then Law Minister and a veteran lawyer Arun Jaitley had remarked that democracy could not be a “tyranny of the unelected”. Following the NJAC verdict, another reason for the tussle between the executive and judiciary had been the Memorandum of Procedure (MoP) which lay down the rules for the appointment of judges to the High Court and the Supreme Court.   While rejecting the NJAC Act, the Supreme Court had agreed to revise the MoP to ensure greater transparency in the appointment of judges to the Supreme Court and the High Courts. However, when in the year 2016 the government submitted a revised MoP, the apex court rejected it as it found that there were certain clauses that were ‘not in harmony’ with the tenets of the independent functioning of the judiciary. Now, with the current Law Minister Kiran Rijiju opening a new front for highlighting the flaws in the current system of appointment of the judges the age-old tussle has got a new vigor. The tussle saw a new twist when on 7 December, Vice President of India Jagdeep Dhankar in his maiden address to Rajya Sabha as its chairperson said the Supreme Court’s 2015 judgment striking down the NJAC Act was a “glaring instance” of “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”.   The comment by the person holding the second most important constitutional office was reflective of the fact that the executive is adamant about reforming the Collegium system. The fact that the apex court did not choose to remain silent and gave a stern reply shows that the judiciary is also not ready to cede the ground. Following the Vice President’s comment, the Supreme Court bench led by Justice SK Kaul categorically stated that the Centre is bound to “observe the law of the land” and cannot “frustrate the entire system” of making judicial appointments just because it doesn’t like it. The bench also minced no words in expressing its disapproval of such comments and asked Attorney General R Venkataramani to “advise them” to “exercise control”. However, the buck did not stop here, as the Law Minister Kiren Rijiju on 22 December in a reply to a question raised in Rajya Sabha said something which was a reiteration of the government’s disapproval of the Collegium system. Rijiju said,  “Representations from diverse sources on lack of transparency, objectivity and social diversity in the collegium system of appointment of judges to constitutional courts are received from time to time with the request to improve this system".   He also added that the government has sent some suggestions to the judiciary for supplementing the MoP.  The statement by the Law Minister was important as on 8 December the apex court made it clear that the issue pertaining to the existing MoP was settled and the government had to follow it. The Supreme Court bench of Justice SK Kaul had made it evidently clear that there is not much that the executive can do in the matter of MoP now as it is already decided.   Justice Kaul said, “Once the collegium in its wisdom or as you would think in the lack of it had worked out the MoP there is no up and down that is to take place.”   The Law Minister’s comment was made during the winter vacation of the Supreme Court. It will be interesting to see now how does Supreme Court react to Law Minister’s recent statement, as the tussle between the government and the Supreme Court doesn’t seem to be ending soon. ‘Self-perpetuating oligarchies’  Supreme Court’s Senior Advocate Raju Ramachandran in an article published in Seminar Magazine in 2013 wrote something which is instructive. He wrote, “Those who created the collegium do not, even in hindsight, acknowledge the constitutional overreach which the judiciary has done in asserting primacy. While acknowledging the failure of the collegium, they are defensive. Every system needs good men and women to work it, they say, and it is too bad that successive collegia have failed the nation.   There is more to judicial appointments to the superior courts than mere legal acumen. And there is more to it than mere seniority. Social philosophies, gender sensitivities, and balances, and inclusiveness are not matters which ‘self-perpetuating oligarchies’ can be completely relied upon to take into account. Nor is the concept of manpower planning, as can be seen with the many instances of short-term chief justices”. The Collegium system has defects, which is a fact that is accepted by eminent jurists and constitutional experts. But, at the same time, the history of executive subversion of the judiciary is also a reality. The solution to this tussle is possible only if the executive can convince the courts that the change it wants to bring in is intended to reform, not to win any turf war. The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal. Read all the  Latest News ,  Trending News ,  Cricket News ,  Bollywood News , India News  and  Entertainment News  here. Follow us on  Facebook,  Twitter and  Instagram.