Should We Be Worried About Executive-Judiciary Congeniality?

The executive-judiciary bonhomie can be perilous for the independence of the CJI’s office and the wider judiciary.

CJI DY Chandrachud and PM Modi.

(Photo: PTI)

In the modern political and constitutional landscape, courts have been posited as truth-speaking institutions besides performing the conventional adjudication and interpretive work. Remaining independent and insulated from the interference of the political executive is a function of that symbolism. Hence the aphorism, “Justice must not only be done but it must also be seen to be done” said Lord Hewart, the Lord Chief Justice of England, in the case of Rex v. Sussex Justices (1924).

By now it is public knowledge that the institutional reputation of the Indian judiciary, specifically the Supreme Court, has taken a dent ever since its unchecked executive-swayed approach has come to light. Barring the notable exceptions, the Court has consistently shown deference in crucial constitutional law cases. The stance of the Court on Article 370, the Citizenship Amendment Act, 2019, and the bail provisions under the Unlawful Activities (Prevention) Act, 1967 are some examples.

This unmistakable deference has publicly weakened the perception of the Court and its impartiality leading to a crisis of faith - particularly for those who depend on the Court's fairness as the ultimate remedy to the political onslaught.

Amidst this reputational crisis, Prime Minister Narendra Modi’s recent videographed visit to Chief Justice of India (CJI) Dhananjay Chandrachud’s residence for Ganapati puja further destabilises the faith of the ‘constitutional subaltern.’

The public display of a private religious ceremony involving the CJI and the prime minister is the first historical occurrence in independent India. Not only does it violate the constitutional doctrine of separation of powers but it also disregards the court’s code of judicial ethics popularly referred to as “Restatement of Values of Judicial Life” as adopted in a full meeting of the Court on May 7, 1997.

A historical reading of the Constitution-making process in India and the constitutional architecture demonstrates that the Montesqueian separation of powers was the foremost priority for the framers. Remaining as a long-standing demand since the very first meeting of Congress in 1885, it came to be codified into Article 50 of the Indian Constitution garnering overwhelming support in the Constituent Assembly. The article thus enjoined the state to “take steps to separate the judiciary from the executive in public services.” Needless to say, the Indian Supreme Court has continually iterated that the independence of the judiciary is a basic structure of the Constitution; the 2015 Fourth Judges Case being the most recent utterance.  

The 1997 restatement on values of judicial life expects a judge to observe “a degree of aloofness consistent with the dignity of his office.” An intimate yet public showcase of a meeting between two constitutional functionaries is liable to create suspicions in the public mind casting a shadow on the integrity and credibility of the office of the CJI, and the Court, by extension. One would have expected the CJI to be careful in preserving the people’s faith in the judiciary as an upholder and custodian of the Constitution.

In a volatile socio-political context, such an executive-judiciary bonhomie can be perilous for the independence of the CJI’s office and the wider judiciary. The restatement document adds: “Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.”

Notably, this is not the first time the sitting CJI has undermined the secular credentials of the Indian polity and the Court – a principle espoused by the Court as a basic structure of the Constitution in S R Bommai v Union of India. In January of this year, after his visit to the Dwarkadhish temple in Gujarat, the CJI invoked the dhwaja (flag) atop the temples of Jagannath Puri and Somnath Shrine as a unifying force for all of the nation. Critiquing this, Ramachandra Guha has warned against this congruence as “tendentious and misleading.” 

Lest we mistake this act as a fault in the CJI’s action alone, it is imperative to highlight the larger pattern that is being blatantly displayed by the judiciary. According to a recent news report, as many as 30 retired Judges of the Supreme Court and various High Courts participated in a meeting organised by the Vishwa Hindu Parishad’s ‘Vidhi Prakoshth’ (legal cell) on 8 September 2024. With Union Law Minister Arjun Ram Meghwal also in attendance, discussions have included issues raised by Hindutva groups about the Varanasi and Mathura temples, the Waqf (Amendment) Bill, and religious conversions. This is alarming and speaks volumes about the possible influence of the political ideologies of judges on the cases they decide when they hold office.

While the motivations behind such allegiance and assertion remain conveniently concealed, one cannot overlook the trajectory that follows. For instance, in March this year, Justice Abhijit Gangopadhyay of the Calcutta High Court resigned and immediately joined the ruling Bharatiya Janata Party. According to a newspaper report, “Justice Gangopadhyay’s tenure in the High Court was characterised by orders against the state government and even public statements against the Trinamool Congress.” This raises the larger debate about the role of political ideologies and their influence on adjudication.

In India, unlike the United States, since judges are not political appointees, such acts raise an alarm. Add to this, the public praise of the incumbent prime minister by some of the Supreme Court justices. Delivering the vote of thanks at the inauguration of the International Judicial Conference in February 2020, Justice Arun Mishra praised Prime Minister Narendra Modi as a “versatile genius” who “thinks globally and acts locally.” In February of 2021, another sitting Supreme Court judge Justice MR Shah publicly praised the prime minister as “most popular, loved, vibrant and visionary leader.”

Notwithstanding the defence of the Ganapati Aarti as a matter of individual faith, the allegiance of the judiciary towards the executive is a much bigger question that deserves much deeper scrutiny - way beyond the condemnation of a personal act. The executive-judiciary congeniality throws the judiciary off-base and hence frequently lands it in a reputational crisis.

(Burhan Majid is an Assistant Professor of Law at the School of Law, Jamia Hamdard, New Delhi, and a doctoral fellow at NALSAR University of Law, Hyderabad. He tweets at @burhanmajid. Views are personal.)