All governments do want a submissive or pliant judiciary. While active judiciary may be good but activist judiciary is not a great idea as it may disturb the delicate balance of powers under separation of functions. Let judiciary too show the same level of determination to protect citizens' rights that it demonstrates in preserving its own independence.
A few years back to the delight of the BJP, the Supreme Court had called the CBI as a "caged parrot." The CBI certainly works under the administrative control of the Ministry of Home Affairs and therefore it or probably even the NIA (after latest developments) are "caged parrots.” it is no news. But what about judges themselves? Arun Jaitley's statement that the judiciary is destroying the edifice of our legislature brick by brick from the floor of Parliament not only shows the government's frustration with the judiciary, it also indicates the government's desire to have "parrot judges."
Is this desire new? Have not Congress governments tried their best to pack the judiciary with committed judges? Has the judiciary indulged in overreach or judicial adventurism? There are no easy answers for these questions.
To begin with, Jaitley may be guilty of over generalisation but he was absolutely right as far as tax disputes between the Centre and states are concerned. This subject needs to be settled within the political class and the Congress's suggestion as to the involvement of a judge was absurd.
Let us not blame Jaitley and Gadkari. While an active judiciary may be good but activist judiciary is not a great idea as it may disturb the delicate balance of powers under separation of functions.
The rejection of the name of Gopal Subramaniam by the Modi government is still fresh in our minds. The Modi government is upset with the apex court due to the quashing of the National Judicial Appointment Commission (NJAC) Bill by the five-judge bench in 2015. The government's attempt to include the power to reject the names recommended by the collegium on grounds of “national security” in the Memorandum of Procedure has also been recently rejected by the Supreme Court. Moreover, the bold judgment of the Uttarakhand High Court, quashing of the President's rule in the state and the disqualification of nine Congress MLAs must be the cause of this outburst by the senior Cabinet Ministers. In fact, Parliament debates on the NJAC make the contempt and revulsion of political class against judges abundantly clear. The desire to have pro-government judges is not a new phenomenon. Justice Wills in Lee vs Bude had observed: “We sit here as the servants of the Queen and Parliament.” The supremacy of the Parliament and not constitution is the first principle of British law. In India, even the Parliament itself is the creation of the Constitution and the Supreme Court too is not “supreme”. In fact, we have supremacy of the Constitution, not of the Supreme Court.
Even before the birth of the Republic, Jawaharlal Nehru elaborated government's view on the subject on September 10, 1949 in the Constituent Assembly: “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 went on to observe on the possibility of picking up pro-government judges: “If courts proved obstructive, one method of overcoming the hurdle is… the executive which is the appointing authority of judges begin to appoint judges of its own liking for getting decisions in its own favour.” Mrs Indira Gandhi gave full effect to this policy and twice resorted to the supersession of judges in appointing Chief Justices of India. In the name of “merit and integrity,” the Modi government is similarly trying to get control over judicial appointments.
On May 12, 1973, M. Kumaramangalam, Mrs Gandhi's cabinet colleague, in a speech in Parliament defended the appointment of Chief Justice of India (A.N. Ray who had superseded three senior-most judges) when he said: “We had to take into account what was a judge's basic outlook on life….was it not right to take all these aspects into consideration? was it not right to think in terms of more suitable relationship between the court and the government? …In appointing a person as Chief Justice, I think we have to take into consideration his basic outlook, his attitude to life and his politics.” The delay in clearing the names of some 70 persons recommended by the collegium for the appointment as High Court judges, in spite of Chief Justice of India's emotional appeal, seems to be due to the similar enquiries about their outlook, life, political affiliations etc.
No one can quarrel with Jaitley's subsequent statement about judicial restraint. But if the drought decision is the context, one has to say that in case of violation of rights, courts have no choice but to give remedy particularly in social justice matters. Justice Madan Lokur has merely asked the government to have a standard, transparent and rule-based procedure on the declaration of drought. The directive to implement the Disaster Management Act, 2005 cannot be faulted either. Let a possible fall in the Sensex not delay the drought declaration any more.
As a matter of fact, the Supreme Court generally does exercise judicial restraint and cases of judicial adventurism are few and far between. In the recent odd-even case, the Delhi High Court refused to give the stay on the ground that it was a policy matter. But when the government makes the Constitution a plaything as was done during the 1970s or takes arbitrary actions, the court as a saviour of the Constitution has a duty to uphold it. As to the court's powers in policy matters, why did the BJP applaud the cancellation of 2G licenses by the apex court and now opposes its orders banning diesel cars?
The Parliament too has to do an introspection as to its own outreach. Conversion of the Aadhaar Bill into a Money Bill is a case in point and Jaitley is rightly worried about the outcome of Jairam Ramesh's petition in the Supreme Court. Indira's Law Minister Gokhale had openly threatened the Supreme Court in the Lok Sabha on October 28,1976, when he, without mincing words, said: “If the Supreme Court were to strike down constitutional amendment hereafter, it would be a bad day for the judiciary.” Let us not go back to the Indira Gandhi days. Let judiciary too show the same level of determination and zeal to protect citizens' rights that it demonstrates in preserving its own independence.
The writer is Vice Chancellor, NALSAR University of Law, Hyderabad.
This Article is first published in The Tribune. LiveLaw republishing it with the permission of the Author. Views are personal of the author and does not reflect Live Law’s views.