Balancing acts

Both executive & judiciary should respect constitutional boundaries

Union Law Minister Ravi Shankar Prasad and Chief Justice of India Dipak Misra appeared to be talking past each other in their public engagement over judicial appointments and spheres of constitutional responsibilities at a National Law Day event over the weekend. Each excoriated the other’s institution for transgressing boundaries in an exercise that amounted to throwing stones from glass houses. Mr Prasad focused his criticism on the Supreme Court striking down the National Judicial Appointments Commission (NJAC), which sought to give politicians and representatives of civil society a say in appointments to the higher courts. The merit and demerit of the NJAC remains an open question today but Mr Prasad’s observation that the Supreme Court should have displayed faith in Prime Minister Narendra Modi as “a popular and global leader”, who apparently possessed the nuclear button because people trusted him, must be read as, essentially, a politician’s defence of his chief. As a lawyer, he would surely have done better to argue on the basis of the prime minister’s role within the purview of the Constitution. Mr Misra’s counter had the virtue of rigour — he pointed to a judgment interpreting Article 75 of the Constitution, which laid down the “constitutional expectations from the PM.” 

These barbs may have publicly revealed the tensions between the executive and the judiciary but the truth is that neither institution has covered itself in glory in recent years. Prime Minister Narendra Modi referred to two Emergency-era judgments from the Supreme Court to criticise obliquely that regime’s disregard for the constitutional separation of powers. His government’s decision to reject the elevation of former Solicitor General of India Gopal Subramanium as Supreme Court judge even as it cleared the names of three other judges soon after it came to power in 2014 surely cannot pass scrutiny either. It will be recalled that Mr Subramanium, as amicus curiae to the court in the Sohrabuddin fake case, had been instrumental in getting the Supreme Court to order a probe by the Central Bureau of Investigation during Mr Modi’s tenure as chief minister. If this materially weakened Mr Prasad’s argument about the court reposing faith in the executive, the Chief Justice may have been stretching the point when he insisted that the judiciary recognised, accepted and mutually respected the separation of powers between the legislature, executive and the judiciary. Apart from sweeping judgments such as the wholesale cancellation of telecom licences and coal-mine allocations, which destabilised the political economy for many months, examples of judicial overreach have burgeoned in recent years — from  contravening the tenets of habeas corpus in the long incarceration of at least a couple of industrialists without convicting them on any charge to banning the sale of liquor within 220 metres instead of 500 metres of national and state highways.  At the same time, the judiciary’s inefficiencies have scarcely been addressed. The numbers of judicial vacancies remains as vast as ever, especially in the lower courts, the first point of contact for the average Indian citizen, accentuating the backlog of cases, even as it seeks to waste judicial resources on every frivolous Public Interest Litigation. Indeed, both Mr Prasad and Mr Misra would have done better to heed the dignified words of President Ram Nath Kovind, who spoke of the need to maintain “intricate and delicate” balance between the three organs of government. Trading words in public is not the way to achieve that.