As courts become the arena for political slugfests, have judges developed circumspection in dealing with such cases? Often, they have been unsparing in reprimanding the recalcitrant executive for its failures
By Sanjay Raman Sinha
As Justice Sanjay Kishan Kaul retired, he echoed a less disclosed sentiment of the judiciary. “Court can’t be placed to politically handle the government… the Court can’t be the Opposition. A weak Opposition is a problem. Court can’t act as the Opposition to confront the government.”
For a judiciary that is often war-painted for its judicial outreach and the matter of handling a (mis)governance issue under its constitutional mandate, the crisis is real. Few question the executive under reach which triggers “judicial activism”. The populace looks towards the judiciary to correct policy and implementation wrongs. The judiciary then crosses that “Laxman Rekha’’ and pulls up the government and sets off a chain reaction from the executive side. This has been witnessed often times.
Around March 2023, 14 political parties led by the Congress filed a case against the centre for “arbitrary use” of central agencies like the Enforcement Directorate and the Central Bureau of Investigation to arrest and initiate criminal proceedings against Opposition leaders who disagreed with the Modi government. The Supreme Court refused to entertain the petition and said that “politicians cannot be placed on a pedestal higher than citizens and can’t seek special treatment under law and immunity from arrest.” But that’s only one aspect of the story.
At a time when the central government is aggressively pursuing Opposition leaders on supposed criminal charges and when the Parliament is facing mass suspension and walkouts, the battle lines have been drawn more clearly than ever before. The Opposition parties, often beleaguered, have two recourses—go to the media or appeal to courts. Courts are preferred due to their legal legitimacy.
There is a history of Opposition leaders moving court to set correct politically motivated wrongs. In 1971, in the Indira Gandhi vs Raj Narain case, the latter filed a case against Indira Gandhi after losing the elections wherein he alleged that she had engaged in dishonest means throughout the campaign. The court gave a ruling against her, and it made national and international headlines. If Raj Narain had fought a political battle over the issue, the results wouldn’t have been so direct and impactful. This is one of the reasons why politicians move court.
In April 2018, while dismissing PILs asking for a probe into the death of CBI Special Judge BH Loya, the Supreme Court raised concerns about their misuse and warned against using the judicial process to settle business or political scores. “Business rivalries have to be resolved in a competitive market for goods and services. Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements,” a bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud had said.
In recent months, former Andhra Pradesh Chief Minister Chandrababu Naidu moved the Supreme Court against his alleged witch hunt and incarceration in the supposed skill development programme scam and asked for cancellation of the FIR citing it as a case of “political vendetta”.
Legal luminary Prof Upendra Baxi told India Legal: “When politicians feel wronged by fellow politicians or by the media or by anyone else, they take recourse to Article 32 and Article 136 of the Constitution and go to court. In fact, SR Bommai, former chief minister of Karnataka, went to court when his government was dismissed on April 21, 1989, under Article 356 and President’s Rule imposed. There was a great judgment on the basic structure of the Constitution. Then, in the Indira Gandhi vs Raj Narain case, the constitutionality of the 39th Constitutional (Amendment) Act, 1975, was challenged in the Supreme Court. There is an African saying that when elephants fight, it is the grass that suffers. I want the grass that suffers. When politicians go to court and say that their fundamental rights have been infringed, I am glad because it is strengthening democracy, not weakening it. They accept the discipline that the court’s word will be the final verdict. Finally, it will strengthen the rule of law and the Constitution. I think more politicians should go to courts, not less.”
Whenever political cases have gone to courts, they have received a very strong and nuanced treatment. However, in many cases, the government’s response post-verdict has not been very commendable.
Let’s sample some judicial verdicts aimed at bringing order in a chaotic system, and how they were subverted by the government.
- On March 2, 2023, a five-judge Constitution bench of the Supreme Court ordered that the Chief Election Commissioner and Election Commissioners be appointed on the advice of a committee comprising the prime minister, the Leader of the Opposition in the Lok Sabha and the chief justice of India (CJI). This provision was to be in place till the Parliament came up with a statutory provision for appointment. However, the centre has now passed a bill to replace the CJI from the panel with a cabinet minister.
- On May 11, 2023, a CJI-led five-judge Constitution bench delivered a unanimous decision, resolving the dispute between the Delhi government and the centre. It ruled that the Delhi government has legislative and executive powers concerning the control and management of services, excluding matters relating to police, public order and land administration. However, after the judgment, the Modi government moved The Government of National Capital Territory of Delhi (Amendment) Bill, 2023, to reverse the judgment and got it passed in both Houses of Parliament. The president gave assent to the Bill, thereby reversing the Supreme Court’s order.
These are recent examples. The past too is ridden with more such examples. The judiciary has shown ample wisdom and strength to exercise its power whenever the executive failed to discharge its constitutional obligations effectively. This has often been termed “judicial activism”.
In the 1980s, the judiciary made a sea change in environmental laws and charted new horizons in jurisprudence. This has continued till date when courts have taken the centre and the Delhi government to task for failing to curb pollution. This is one of the many areas where the judiciary has been unsparing in reprimanding the recalcitrant executive in its failure to achieve policy ends.
One main reason for the rise in judicial activism is the relaxation of the rule of locus standi, giving a chance to the public to approach courts under Articles 32 and 226 of the Constitution. More people now approach courts on others’ behalf and demand corrective action. The courts are then propelled towards reparative remedies. This has often led to a stand-off between the courts and the executive. The Opposition often jumps unto the complainant bandwagon and makes it a political issue. In the ensuing legal tussle, the “Laxman Rekha” is invariably breached.
The oft-peddled “Laxman Rekha” is strongly rooted in the concept of separation of powers as enshrined in the Constitution. The doctrine of separation of powers states that none of the three organs of the government can exercise any power which properly belongs to either of the other two.
In the Ram Jawayya case, the bench had said: “The Indian Constitution has not recognized the doctrine of separation of powers in its absolute rigidity, but the functions of different branches of the Government have been sufficiently differentiated.’’ Hence, there is more fusion and blending than separation of powers. This blurring of lines often times leads to stepping on the toes of others.
But when shove comes to push, the judiciary is not found wanting in taking government to task, irrespective of whether the case is instituted by the Opposition or a concerned citizen. The judiciary, however, is understandably averse to becoming a party or tool in the ensuing political battle, but it can’t shirk from its responsibility of delivering natural justice to any complainant.