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  • Posted August 29, 2014 by
    Innisfil, Ontario
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    The Executive- Judiciary Tussle in India

    A confrontation is brewing between the executive and the judiciary with the installation of a majority-backed Narendra Modi government. It started with the government's decision to question the appointment of Gopal Subramanium as Supreme Court judge; the tensions were seemingly exacerbated by quick parliamentary approval for two National Judicial Appointments Commission (NJAC) Bills, including one that gives the NJAC constitutional status.
    One thing needs to be stated upfront. While the immediate triggers relate to the government’s actions, the confrontation was anyway building up for some time due to three other factors: the steady encroachment on legislative space by the judiciary (2G judgment on auctions, mining bans, setting up of SIT on black money, etc), the subversion of the original constitutional mandate on judicial appointments by the Supreme Court during an era of weak governments, and rising public concerns about corruption in the judiciary.
    The reason why matters have come to a head now (and not earlier) is clearly the arrival of a strong government which is not willing to let the courts walk over its jurisdiction. With the NDA government giving its nod for the NJAC constitutional amendment bill to be sent to the states for ratification (15 states have to pass it before it becomes law), the Supreme Court will be hearing two petitions challenging the NJAC bills. With other matters involving government also washing up in the Supreme Court - including the constitution of the Lokpal that needs a leader of the opposition (LoP) to join the selection panel when there is no LoP possible now, given the Congress party's low Lok Sabha numbers - tensions are bound to escalate.
    Some tension between executive and judiciary is inevitable and even good because their jurisdictions are not watertight. While parliament has the unfettered right to pass laws, the courts have the right to check if these laws are in tune with the basic structure of the constitution. This creative tension keeps both the executive and the judiciary on guard - and mutually accountable. But if this tension degenerates into open war and ego tussles, it can be ruinous for the country and governance. This is what both government and judiciary must seek to avoid.
    Right now, though, it is important for the judiciary to realise that it has encroached too must into executive/legislative turf, and must seek to withdraw gracefully.
    Contrary to general assumptions, the current tensions between executive and judiciary have their origins not in the specific acts of the Modi government, but in the formation of relatively weak coalition governments for the bulk of the last 25 years. Starting with the VP Singh government in 1989, the central government has been politically weak most of the time. The only two periods of relative stability were during the Narasimha Rao and Atal Behari Vajpayee governments. The former was solidified by external financial bankruptcy, which muted the opposition, and the latter by the post-Kargil verdict that gave the NDA a clear mandate. But even Rao and Vajpayee did not run majority governments; the remaining coalition governments were politically even weaker.
    Political power vacuums are an open invitation to other creatures of the constitution to extend their reach, and this what the courts did when executive authority declined – especially during the 1991-99 phase, and during the 2009-14 one, when the executive was weakened by the lack of a clear electoral mandate, sometimes worsened by bad political arrangements (Prime Ministers with no support, or nominated PM’s with no political authority).
    In 1990s the Supreme Court completely trampled over the constitutional provision that the government will appoint Supreme Court judges after consulting the judiciary. It made the collegium system supreme in two judgments delivered in 1992 and 1998. In both years, political authority was weak. In contrast, in 1981, a year after Indira Gandhi stomped back to power with a hefty majority, the Supreme Court had, in fact, upheld the old constitutional scheme of government appointing judges after consulting the judiciary.
    In 2011, with the moral authority of the UPA-2 eroded by scams and its political authority residing outside the government in Sonia Gandhi, the Supreme Court stepped into the power breach. In the 2G case verdict, it not only cancelled the telecom licences and spectrum awarded by A Raja through a dubious process, but also laid down policy on how scarce natural resources should be sold – only by auctions. Pricing of natural resources is in the area of policy, and outside the scope of the judiciary – unless the process itself is vitiated by unfairness or opaqueness.
    Luckily, the UPA government gathered enough spine to force the court to re-examine the issue again through a presidential reference under article 143 (1), and the court backed off. It affirmed that policy is indeed the government’s domain. Only its unfair implementation would be looked into by courts. The presidential reference was answered in no uncertain terms by a bench headed by then CJI SH Kapadia thus: “There is no constitutional imperative in the matter of economic policies. Article 14 does not pre-define any economic policy as a constitutional mandate.”
    The Supreme Court used an earlier judgment to stay out of policy formulation. That judgment held: ““We do not think that it is the function of this court or of any court to sit in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide.”
    The point is clear: the courts have backed off whenever governments have asserted their right to legislate and decide policy. They encroached on executive and/or legislative territory whenever governments were too weak to fight back.
    This brings us to another issue – why courts may now have to back off from a confrontation over the NJAC bills.
    Just as policy is not the court’s domain, neither is judicial appointment and transfer. Under article 124, the CJI and senior judges have a right to be consulted on such appointments, but they do not have the last word on them. The NJAC more than respects this principle of consultation and, in fact, gives any two members of the proposed six-member NJAC (three of whom will be judges) the right to reject a candidate. So the judiciary has even more powers under NJAC than what was given by the constitution to them. In any case, the collegium system was past its sell-by date.
    The main objection raised to the replacement of the collegium system by NJAC is one of judicial independence. How will judges be independent if they are appointed by the NJAC, where politicians have a (minority) role to play? There are several layers to the answer.
    First, independence is not about the process of appointment, but whether the judges are upright and honest. The collegium system was far from foolproof in the appointment of honest judges – as the allegations of corruption in judiciary highlighted by former judge Markandey Katju show.
    Second, independence can be subverted in many ways. The UPA did not take the judiciary head-on, but it gave 18 of the 21 judges who resigned after 2008 post-retirement jobs. How can one presume these judges did a completely independent job when they were on the bench when, at the same time, they were angling for post-retirement jobs?
    Third, independence is institutionalised partially by the current system of promoting judges to the position of CJI only on seniority. It can be institutionalised further by giving all judges a longer tenure – maybe by extending their retirement age to 68 from the current 65 (as long as they are otherwise physically and mentally fit).
    In the US, Supreme Court judges never demit office till they themselves opt to retire. Justice Katju’s suggestion that CJIs should be appointed by merit is not a good suggestion because this would be open to executive misuse – even though there is concern over the quality of judges now in courts. A longer tenure and a ban on holding public office after retirement may be better guarantees of judicial independence.
    Fourth, uprightness alone is not enough. The political orientation of a judge is not unimportant for his or her selection – even though it is not the primary concern. A left-winger like Prashant Bhushan, who might otherwise be eligible for the position of judge given his legal experience, might well have answered the presidential reference on 2G auctions differently from an SH Kapadia.
    We need political neutrality in judges as much as independence to get a good judiciary.
    Much has been made of political interference in judiciary due to NJAC, but here’s a poser for the judiciary itself: when it is an interested party in the NJAC litigation, how will it answer the charge that it faces a conflict of interest in this case, where it is both (indirect) litigant and judge? Most sitting and retired judges have opposed the NJAC, and so it is a safe bet that the judiciary does not want NJAC.There is little doubt that the Indian judiciary is under intense scrutiny. With former Supreme Court judge Markandey Katju in a tell-all mood post-retirement, the dirty linen is being washed energetically in public view. Katju talked about how former Chief Justice SH Kapadia did nothing about a corrupt Allahabad High Court judge even after intelligence taps on his 'agents' revealed corrupt practices. The ex-CJI claimed he did not recollect the incident and anyway he did not recommend the elevation of any unfit judge to the Supreme Court. To which the irrepressible Katju retorted that in ex-CJI KG Balakrishnan’s tenure, one more judge with a negative reputation (PD Dinakaran) almost made it to the top court, and Kapadia was a part of the collegium that took this decision.
    Given the widespread debate generated by Katju’s recent holier-than-thou volubility, a rattled Chief Justice, RM Lodha, has rushed to defend the collegium system of picking judges. He pointed out that he was one of the first judges to be so chosen after the system was put into place. "Don't shake the confidence of the people in the judiciary," he warned. He added that the entire current Supreme Court had been selected by the same collegiums system.
    However, the honourable CJI needs to be contradicted. Merely because honest judges have also been appointed through the collegium system it does not follow that everything is all right with it. Even earlier, when it was the government which had the prime role in appointing judges, many honest judges were appointed. Does this mean giving primacy to the government in appointing judges was the best thing? However, we have to remember how the constitutional provision for the appointment of judges was essentially hijacked by the Supreme Court in the name of judicial independence.
    Articles 124 and 217 of the constitution say that judges of the Supreme Court and higher courts will be appointed by the president (meaning the government) in consultation with the Chief Justice of India and other chief justices and judges of the high courts.
    In a 1981 judgment, the Supreme Court itself upheld this system. But later, in two subsequent judgments, the Supreme Court decided that the government would merely have the right to express doubts over judicial appointments – which could be over-ruled by the CJI. This was how the collegium system came to dominate judicial appointments, with the Supreme Court arrogating to itself the right to appoint judges, something the makers of the constitution never intended.
    The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium.
    Almost nowhere in the world do judges appoint judges for the simple reason that this makes for a complete lack of accountability in the judicial system, reducing elected leaders to mere rubber stamps in judicial appointments. Quite clearly, the CJI is wrong to defend this system, even though he is right to highlight the need to keep the judiciary independent.
    Many suggestions for creating permanent judicial appointments commissions (even two such commissions) are doing the rounds. While these may not solve all the problems in finding good, honest judges for the higher courts, they will clearly be an improvement on the current system of judges doing the job behind closed doors.
    The independence of the judiciary needs transparency in the processes of short-listing, selection and final appointments of judges. The Supreme Court can prove its independence by refusing to hear the case against the NJAC. The time to check its constitutional validity is when it is manifestly shown to have problems - not now. It is time for the judiciary to back off from a needless confrontation with the executive on this.
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