It is regrettable that the government continues to show its unhappiness with the institution of the judiciary by expressing its annoyance with the Supreme Court — for striking down the National Judicial Appointments Act in October 2015 — at public functions even now. Such peevishness is apt to convey the impression that the government is not above seeking to bulldoze the crucial institutions of democracy, not stopping at trying to browbeat the judiciary when an independent judiciary is a part of the Constitution’s basic structure. A more dignified and fruitful way may be for a careful and productive interaction between the executive and the judiciary away from the glare of publicity on finding the golden mean in evolving a structure for appointments to the higher judiciary, but one on which the government’s shadow doesn’t fall. This is important as the government is also the country’s biggest litigant.
Besides, who wants a poodle judiciary in a democracy? If that happens, there would be no dividing line between a democracy and a dictatorship or an authoritarian dispensation of the kind that flourished for the brief period the Emergency was in force. Over the weekend, at functions celebrating National Law Day, the President, the PM, Union finance minister Arun Jaitley and law minister Ravi Shankar Prasad advised Chief Justice of India Dipak Misra to bear in mind the question of separation of powers and the need to strike a balance between Parliament, the executive and the judiciary — the three pillars of the State.
While the President and the PM conveyed their message in a dignified manner, the two ministers appeared to be growling their disapproval of the nation’s top judiciary. It was a lineup of dignitaries that appeared to put the CJI in the dock in a concerted and pre-planned manner. This was unwarranted and unbecoming. In 2015 and 2016, the government had similarly made strong public remarks in the presence of then CJIs H.L. Dattu and T.S. Thakur. Mr Jaitley’s contention was that the judiciary was trying to muscle its way into the domain of the executive by instructing the government in various ways and wondered aloud what might happen if the reverse were to happen. Mr Prasad made it no holds-barred. He said it would seem from the judiciary’s attitude that the Prime Minister could be trusted with the country’s nuclear button but not with a role in the appointment of judges. As an argument on the issue of the independence of the judiciary, this cannot be deemed a substantive point. The Chief Justice held his ground and duly noted that only an independent judiciary would be in a position to safeguard the fundamental rights of citizens in the face of any encroachment by the executive. The warfare is nevertheless completely unwarranted.
