Judiciary vs govt: The more things change, the more they remain the same

The problem, as many experts have pointed out, lies with the power of judicial review. The judiciary has invested it to mean absolute judicial supremacy, while the govt begs to differ

There is the beginning of a new trend in the world: a new phase of executive-judiciary confrontation. First, there was the news that the current Israeli government was trying to pass legislation that would restrict the Israeli judiciary in some ways. Now comes the news that the current Pakistani government is also considering doing the same. Earlier, some other countries had done it.

This has led to two sorts of discussions. The obvious one is that the current Indian government will also go down this path. A major American newspaper yesterday also alleged that the Modi government has been pressuring the judiciary for favourable judgements.

The second discussion stems from this. It is that democracy is in danger in India. Some people have even begun whispering there may not be an election in 2024. This is not a recent whisper. It's been around since 2019 but has been amplified now.

Be that as it may, because rumours will always be there, it is instructive to see the history of executive-judiciary tensions. They go back a long time and are inherent in the situation. The truce is always uneasy.

The documented story starts in the very early 17th century in England when James I had just become King. He thought he had a "divine right to rule".

No, said an English judge called Edward Coke. He said the King and Parliament were subject to the test of "reason and common right". But a few years later, an attorney general called Francis Bacon said that judges must be "lions under the throne" -- growl but not bite when the State misbehaves with the citizens.

Since then, there have been many other instances of this tussle between the sovereign and the judiciary, which has continued over the centuries. It's the same story repeatedly: the sovereign appoints the judges who then defy it.

We have forgotten, but our Supreme Court became "lions under the throne" when Jawaharlal Nehru brought in the Fourth Amendment in 1955, at least regarding property rights. The amendment basically told the judiciary to stand aside in these matters.

Then in the 1970s, the courts repeatedly told Indira Gandhi not to be a nuisance to Indian democracy. She not only refused but also struck back by appointing loyalist judges. There was even talk of a "committed judiciary". But in 1992, the Court retaliated and asked the government to lay off judicial appointments.

A few years ago, the government again tried -- this time via Parliament -- to wrest back control over appointments. The judges simply struck down the new law. This wrangle is still going on. When this one is settled, some other wrangle will take its place.

The problem, as many experts have pointed out, lies with the power of judicial review. The judiciary has invested it to mean absolute judicial supremacy. The government begs to differ. Or as the late Satish Kaushik asks in a film, "vadda kaun”?

The best answer, at least according to me, came from an American scholar George H Gadbois in 1962. This is what he said:

'Whereas decisions of the Federal Court (the predecessor of our Supreme Court) which embarrassed the British won the acclaim of the Indian nationalist leaders... decisions of the Supreme Court which have thwarted the government have produced the opposite effect. The ease with which the Constitution may be amended... indicates that while the Court's jurisdiction is extraordinarily wide, its ultimate power is limited... the Constitution means what the Congress party says it means…."

Replace BJP with Congress, and you will see what I mean. The more things change, the more they remain the same.