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Business News/ Opinion / Some prime judicial questions in India
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Some prime judicial questions in India

Prime Minister Narendra Modi's controversial remarks are worth deliberating

Illustration: Jayachandran/Mint Premium
Illustration: Jayachandran/Mint

Conferences of chief justices of high courts and chief ministers are staid affairs. Judicial and executive leaders get together for chitchat and avoid saying anything controversial. There is some talk of pendency of cases in courts and the gathering disperses until the next such occasion. Judges don’t publicly say anything against politicians. The latter are in any case chary of criticizing judges.

What happened at this forum on Sunday was very unusual. Prime Minister Narendra Modi touched upon one big taboo subject and stirred a hornet’s nest in the bargain. In his speech, Modi spoke on two interlinked topics. One, the difficulty in estimating the difference between perception and reality. Two, the possibility of “five-star activists" driving the judiciary.

These are controversial remarks. They have been made against a certain background and this needs to be appreciated. In recent months, many decisions of the Union government have been subjected to judicial challenge. Now there is nothing new here and this has been so since the advent of judicial activism. In one set of decisions at least, the Modi government has upped the ante. For the first time in two decades, the Union government has shown activism in accepting/rejecting the names of people for appointment to the apex court. Not only that, the passage of a law ending the collegium system of appointment of judges, too, has proved controversial. To say that there is a confrontation between the judiciary and the executive will be too strong a claim. But these decisions have led to anxiety. On a different, non-institutional plane, activists of various hues have kept up the pressure on Modi since his time as chief minister of Gujarat.

One way to look at Modi’s assertions will be to see them against a background of institutional imbalances in the Indian polity. This is a well-known theme. Another way to see them would be to look at the past two decades of judicial evolution. Under the original Constitution of 1950, the judiciary had wide-ranging powers of judicial review. These were seldom used beyond a point. Since 1974, judicial review of laws and executive actions has come to such a stage that one legal scholar, Upendra Baxi, has claimed that India’s higher judiciary now co-governs the country. If this question is posed to any Supreme Court or high court judge, he will reject it instantly. But that denial will not square with reality. The realm of plain vanilla judicial review has been left long behind. Today the Supreme Court is an active intervener in policy formulation. From deciding how natural resources will be allocated to something as mundane as the number of toilets in schools in some states, nothing is seemingly out of the purview of courts.

This enlargement of domain has a corollary. By their very nature, public acts invite public scrutiny. If the apex court and high courts pronounce on matters that affect policymaking, sooner or later, judicial decisions and judicial conduct, too, will be subject to criticism and possibly partisan comment. That will be a dangerous development for many reasons. The judiciary as an institution is a very important safeguard for Indian democracy. If it treads over certain boundaries, rightly or wrongly, the danger of institutional conflict and lowering of its prestige cannot be ruled out.

The greatness of Indian democracy lies in the fact that no government has ever refused to adhere to judicial verdicts. This has happened in spite of the fact that judges have no independent means of enforcing these orders. It will be a bad day for democracy if any government thinks otherwise. In his comments, Modi also urged the judges to develop an in-house mechanism to introspect on its workings. This is sound advice. Many decades ago, a judge of the US Supreme Court, Felix Frankfurter, warned his fellow judges against traversing into the “political thicket". His warning was considered out of place even in that age. But he was not far off the mark. In light of current events, it might be a good idea to take another look at his opinion.

Can the relations between the judiciary and the executive be described as confrontational? Tell us at views@livemint.com

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Published: 06 Apr 2015, 04:18 PM IST
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