State of the Union: Judicial over-reach or executive paralysis?

Step by step, brick by brick, the edifice of India’s legislature is being destroyed,” moaned finance minister Arun Jaitley. He was referring to alleged judicial encroachment into the domain of the executive and legislature. The statement was in the context of the demand for judicial adjudication of dispute resolution on the proposed Goods and Services Tax Bill. However, the bawling betrays the NDA government’s inability to grasp the nation’s transformed governance paradigm, where the executive is just one of the myriad stakeholders in India’s power dynamics. Beyond the Narendra Modi government’s bitterness at the Supreme Court quashing the National Judicial Appointments Commission Act by an overwhelming majority and the recent mauling it got from the courts on the Uttarakhand issue, there are much deeper issues at play. These go to the very heart of the lack of legitimacy of the executive and legislature.

In the republic’s nascent years, though the judiciary was conservative and cautious, it didn’t seriously oppose the policy thrusts of the political executive. Though affected interests challenged most progressive initiatives, including zamindari abolition and other land reforms, the government was able to have its way on almost all its statutory and policy prescriptions. The crunch came in 1973, when the Supreme Court propounded the “basic structure” doctrine in the Kesavananda Bharti case and proscribed the amending powers of Parliament. In addition to the inherent tension that began to manifest itself between the executive-legislature combine on one hand and the judiciary on the other, the growing perception that the executive had ceased to be the first frontier of justice took centrestage.

In every democracy, there are spirited contests between various political formations that vie to form federal or state governments. However, once governments are formed, the incumbent endeavours to administer keeping in mind the principles of equity, justice and fair play. The Indian political class, however, cast these time-honoured values by the wayside. Not only were their actions arbitrary, vindictive and even downright malicious against political opponents, the favours extended to political fellow-travellers at the cost of the deserving and meritorious instilled a deep distrust among ordinary citizens.

While participation in the democratic processes grew and got more broad-based, the trust quotient plunged. The credibility deficit became all the more pronounced due to boorish behaviour by elected eminences when Parliament or the Assemblies were in session. Hurling mikes, shoes and brawling became the norm rather than exception. Slowly and gradually, legislative institutions became irrelevant to the lives of citizens. They have even made themselves redundant to the national discourse.

The judicial institutions, on the other hand, not only maintained their quiet dignity and rectitude, but even expanded their remit through public interest litigation. People realised if they wanted relief, it was far more efficacious to approach the judiciary and get directions issued rather than bang their heads against ossified and venal government structures. From getting footpaths repaired, refuse lifted, streetlights being made functional, maintenance of public parks and even access to drinking water — every basic need of the citizen in both urban and rural areas — started landing at the court’s doors. As a consequence of well-meaning judicial interventions, public confidence and trust in the judiciary grew and people now started perceiving it as the only bastion of justice.

As a result of this enhanced role, the judiciary soon took upon itself the responsibility of appointing judges. There was no public outcry at this reinterpretation of constitutional provisions that many jurists believe were detrimental to the system of checks and balances, going to the very core of how a democracy should structure itself. When the executive tried to wrest this power back through the NJAC by an overwhelming display of legislative unity, in Parliament and the Assemblies, its striking down by the Supreme Court hardly created a ripple among people except among those who wanted a say in judicial appointments.

If the courts had indeed trampled upon the sovereign will, as represented through elected representatives, why was there no outcry? The simple answer is that while politicians wanted a say in judicial appointments, people didn’t. Here the elected representatives weren’t articulating the people’s will, but their own desires and aspirations. It was constitutional politics at play, in which ordinary people had no interest.

That is why even in dispute resolution over taxation between the Centre and a state, or for that matter between states, judicial determination as sought in the case of the GST paradigm is but at a subliminal level both an admission and acceptance by the political class that it is singularly incapable of surmounting the deeply divisive and polarised political divide. The judiciary is, therefore, the only natural and neutral umpire which can be trusted.

It is thus logical that if the political class doesn’t want its superstructure and foundations to be dismantled brick by brick, it would have to reinvent itself.
First, it will have to demonstrate that the government, irrespective of which party is in power, acts for the entire country and not just for the groups then in power. Second, politicians would have to re-learn what it means to be a legislator, and restore the decorum and gravitas of legislative institutions. Third, they will have to convince people that politics is a public duty and not a means of personal enrichment.

Fourth, they must understand that voter turnouts essentially don’t reflect the people’s faith in the individual they are electing, but in the larger democratic principle, for elections are a contest between the given human material and for most people it is a zero-sum game. Fifth and not last, it must dawn that expediency and opportunism no longer work. It isn’t kosher to pompously pontificate that disruption is a legitimate parliamentary tactic while in Opposition, and then carp that the judiciary is overreaching itself while in government. In essence, politicians would need to rescue politics and the governance processes from their own depredations, a task that they singularly don’t understand or don’t want to understand.