Judiciary During Coalition Government : Potential Changes In Power Dynamics

Update: 2024-06-15 08:16 GMT
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A coalition government is back in power in India after ten years. The Bharatiya Janata Party (BJP), having fallen short of the majority mark, is now dependent on its allies within the National Democratic Alliance (NDA) to form the government. Although the NDA government, with Narendra Modi as Prime Minister, is continuing with most of the Ministers from the previous administration, it is...

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A coalition government is back in power in India after ten years. The Bharatiya Janata Party (BJP), having fallen short of the majority mark, is now dependent on its allies within the National Democratic Alliance (NDA) to form the government. Although the NDA government, with Narendra Modi as Prime Minister, is continuing with most of the Ministers from the previous administration, it is widely speculated that the domineering approach displayed during the previous two terms, when the BJP held an absolute majority, will be tempered down this time.

In this backdrop of the changed political scenario, it will be interesting to observe any changes in the dynamics between the judiciary and the government. It is a widely held view that the judiciary tends to be more passive when there is a government with an absolute majority, whereas it becomes more assertive when the government is perceived as 'weak'. This perspective has been echoed by none other than a judge of the Supreme Court. Justice Sanjay Kishan Kaul, in an interview given to The Indian Express after his retirement in December last year, said :

"When there is a strong executive, there will be a little pushback for the judiciary. 1990 onwards we have had coalition governments. So the judiciary was able to advance its cause, sometimes even transgress into some areas, I feel. But with the majority government coming, it was expected that some steps would have to be taken back."

During the coalition government of the UPA (2004-2014), the Supreme Court of India exhibited a strong activist zeal on numerous occasions. Notable examples include the Court's intervention in the 2G Spectrum and Coal Block allocation cases, which resulted in significant political setbacks for the UPA government. In contrast, during the NDA government's rule (2014-2024), with the BJP holding an absolute majority, the Supreme Court's approach appeared markedly more restrained.

During this period, the judiciary often seemed reluctant to challenge the government on critical issues impacting citizens' rights. This cautious stance was evident except in a few instances, such as the NJAC case in the early years of the NDA's first term and the Electoral Bonds case towards the end of the second term. Apart from these exceptions, the Supreme Court did not overturn any major government decisions. The Court's handling of several politically sensitive cases, including Judge Loya's death, the Rafale deal, the removal of CBI Director Alok Verma, the Ayodhya-Babri dispute, Kashmir habeas corpus matters, and the migrant workers' crisis during the COVID lockdown, faced significant criticism.

In numerous instances, the Union Government received a free pass without substantial judicial scrutiny. Furthermore, important cases like those concerning Article 370 and Electoral Bonds were delayed for years. This consistent pattern of judicial abdication and evasion of power led scholarly commentators like lawyer Gautam Bhatia to label the judiciary during this period as the “executive court.” The public perception of the independence of the judiciary had hit its nadir.

The Modi government also evinced a clear intention to gain one-upmanship over the judiciary. Attempts by the Court to exercise judicial review were often met with abrasive responses from the government.The popular mandate enjoyed by the Government was very often cited to question judicial interventions. When the Supreme Court struck down the National Judicial Appointments Commission, the then Minister Arun Jaitley lashed out at the judgment calling it a “tyranny of the unelected.” The Government ran roughshod over the Supreme Court by ignoring several collegium resolutions. Union Law Ministers Ravi Shankar Prasad and Kiren Rijiju minced no words in publicly attacking the collegium system, opening a war of words between the judiciary and the Court. In this conflict, the Court mostly adopted a path of concession and did not assert its authority when the Government overlooked the collegium resolutions in violation of binding judgments. It became evident that the Centre was exercising an "invisible" control over judicial appointments and transfers. Judges known for their independence were often bypassed for elevations or transferred, while those who acted in favor of the government received prestigious post-retirement positions(for more, read here, here, here and here). An unprecedented event during this term was the nomination of a Chief Justice of India to the Rajya Sabha within a few months after his retirement. Such instances led many to speculate whether post-retirement assignments were "quid pro quo" arrangements.There were also efforts to delegitimize the judiciary by creating social media narratives focusing on case pendency and court vacations, often with endorsement by government affiliates. Thus, the government appeared to be attempting to keep the judiciary under control through a “carrot and stick” approach—denouncing independent judges while rewarding compliant ones.

There were even attempts from the Government to denounce the 'basic structure doctrine', which was formulated by the Supreme Court in the landmark Kesavananda Bharati judgment to guard the Constitution from destruction by a majoritarian government. The bitter experiences of the Indira Gandhi Government made the judges foresee the danger of allowing unbridled amendment powers to the Parliament. Any government with a brute majority can bulldoze amendments through the Parliament to distort the Constitution to maximize power and to thrust its own ideology on the citizens. Over the years, the basic structure doctrine has proven to be a crucial safeguard, preserving the Constitution's core and limiting the government's ability to pursue sweeping ideological agendas. This likely explains why Vice President Jagdeep Dhankhar lashed out at the Basic Structure Doctrine by saying that Parliament's sovereignty cannot be compromised.

It can be said that the popular majority enjoyed by the ruling party buoyed the government's often brazen responses. It will be interesting to observe whether the government will persist with such an approach now that it has returned with a reduced mandate and is dependent on the support of allies for its survival.

Anjana Prakash, a former judge of the Patna High Court and currently a Senior Advocate at the Supreme Court, expressed the view that ideally, judges should be reviewing government actions strictly within the parameters of the Constitution, regardless of whether it has an absolute majority or was backed by coalition support. However, she agreed that whenever there is a strong government in place, there is a tendency on the part of the judiciary to be more circumspect. This caution, she suggested, is not necessarily due to external political pressure but could stem from judges feeling politically aligned with the government. Judges, like other humans, often find comfort in playing it safe and taking the path of least confrontation, especially when facing a self-aggrandizing executive.

Prakash also disagreed with the narrative that the government should be regarded as the supreme because it has been elected. “To say that the judiciary, being an unelected body, cannot question the government is absurd. Those who say this have not understood the Constitution and the role assigned by it to each organ of the State. Popularity is not to be confused with correctness. In the Constitutional scheme, judges are not expected to be popular,” she said.

Chander Uday Singh, Senior Advocate at the Supreme Court, agreed with the perception that the judiciary tends to be on the backfoot when there is a government with a strong mandate.

“For instance, in the UPA-2, when the government was weak, in the sense due to some degree of infight within the ministries and the coalition partners, the Supreme Court became very aggressive and an interventionist court. During the first NDA term (2014-19), the Court had given some reasonable pushback. However, after the enhanced mandate of 2019, the Court became very indulgent of the government and was willing to accept anything the law officers of the union said unsupported by affidavit,” Singh said. He opined that the Court seemed to be “in the thrall of the Government" willing to accept everything the Government said without much questioning.

Although the BJP Ministers have retained most of the crucial ministries in the new Government, Singh hoped that there would be more restraint on its part due to the increased significance of the coalition partners.

“Though the same ministers are continuing mostly, in a coalition government, I would imagine that there would be some degree of checks and balances within the cabinet and I would hope that the Govt doesn't function in the same majoritarian manner,” he said.

About his expectations about the judiciary during the coalition era, Singh said :

“We hope and wish that the Supreme Court restores its balance in functioning and becomes more of an enquiring court, a Court which enquiries into citizens' grievances and acts as a genuine check on the State.”

The general atmosphere of fear, which was looming over all institutions, including the judiciary, could be expected to dissipate in the coalition era.

(The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in).


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