Public Perception Will Decide Battle Between Courts and Executive

Reactions to SC controversy throw some light on the struggle for power and relevance between judiciary and executive

Recently, four of the senior-most judges of the Supreme Court went public with their concerns about the manner in which the Chief Justice of India has apparently undermined the integrity of the institution. This so-called revolt was unprecedented, certainly; and naturally, it led to an uproar in the media among lawyers, but also among the public at large.

While the revelations point to a deep, and worrying, malaise in the judiciary, some condemned the manner that was adopted by these judges, because, by ‘washing dirty linen in public’, they likely tarnished the reputation of the Supreme Court. Others, troubled by the gravity of these charges, appreciated this act of protest as an unfortunate, but necessary, step towards restoring the institution to its pre-eminence.

Finally, there were those who believed that this was a politically motivated, Congress-sponsored rebellion, intended to discredit the Modi government.

The Different Reactions to the ‘Revolt’

The reactions to this latest controversy have been unexceptionally diverse; but interestingly perhaps, they also have the potential to tell us a story of the relative reputation of two of the three branches of the government, as on this date. This may, at first blush, seem like an odd proposition for, as the Central Government was quick to suggest, it seemed to be an internal matter of the judiciary.

Despite speculation that the immediate trigger for the act of protest was the allocation of a PIL filed regarding CBI Judge Loya’s death, the fact of the matter is that the letter spoke of instances when the rules for bench allocation were departed from, and appeared therefore, to have been directed specifically at the Chief Justice, rather than the ruling party. Similarly, while the letter alluded to the apathy of the government in finalising the Memorandum of Procedure (MoP), the judges’ criticism was limited to the Supreme Court’s response.

This however, did not prevent many – let’s call them ‘Team Executive’ – from dismissing these revelations as a conspiracy against the ruling party. Doesn’t this perhaps reveal that their greatest concern was protecting the reputation of the executive? On the other end of the spectrum, are those – ‘Team Judiciary’ – who are most concerned about the impact of this on the reputation of the judiciary.

Both teams however, share in common their disappointment at this act of protest, even while they differ in the locus of their concern. Those who did not condemn this protest too, can be divided into two teams – ‘Team Bitter-Pill’, who recognise the importance of the judiciary to preserve the Indian democracy and hope that this will prompt the judiciary to get its act together; and finally ‘Team Cynics’, who have never had much faith in the functioning of democratic institutions in India, the justice delivery system included, and merely see this as an affirmation of their worldview.

Importantly, Team Bitter-Pill is equally concerned with the reputation of the judiciary, as perhaps Team Judiciary, except they disagree on the manner in which this reputation is best protected – whether by transparency or secrecy. Perhaps, one other difference is the urgency with which they are eager to protect the judiciary's reputation – while one is concerned with the immediate fallout; the other is focused on preserving the long-term, even if comes at the cost of the short-term. Team Cynics are perhaps glad for this outburst, which exposes the political character of an otherwise hallowed institution.

Conflict Between Judiciary and Executive

Why is any of this interesting? In democracies, it is not unusual for the three branches of government to be caught in a power struggle with one another; and this, despite a constitutional framework that provides for separation of powers.

This struggle however, is often not merely for power, but also for legitimacy or respect in the eyes of the public. Equally, the reputation of the different branches probably determines the contours of this power struggle, and limits the efforts of each to expand their power at that point in time.

In India, it is no different; and in its history as an independent nation, the power-relations between the judiciary, legislature and executive have been frequently redrawn. And if we are to focus particularly on the struggle between the judiciary and executive (the two branches of government whose reputations are at stake as a result of this controversy), some of the bloodiest battles have been fought over the appointment and transfer of judges.

This occurred particularly during the 1970s, when the Indira Gandhi government attempted to weed out judges who were unsympathetic to the government, while rewarding those who were not. Eventually, in the 1990s, the judiciary usurped for itself the power to appoint judges through the collegium system.

Recently, of course, there was a fresh attempt made to restore some control to the executive over appointments, through the National Judicial Appointments Committee Act, but that was struck down by the Supreme Court. This tug-of-war over appointment of judges too, could in part be explained by the relative legitimacy of the institutions over different periods of time – with majority governments asserting themselves against the judiciary, more often.

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No More Advantage Judiciary?

However, this tussle between the judiciary and executive has also been fought within the more traditional domain of the latter. Over the years (and perceptibly after the Emergency), the Supreme Court has steadily increased the breadth of its powers to dictate government policy and monitor its execution, treading frequently on the toes of the executive, as a result. This has been justified, often, on the grounds that the judiciary was ‘compelled’ to take an activist turn to correct for a lackadaisical executive.

One of the several examples of the ‘judicial activism’ of the Supreme Court has been the remarkable ‘right to food’ case, that saw the Supreme Court monitor the implementation of government food schemes over a period of nearly two decades. Less successful examples include the Supreme Court’s attempt at banning the sale of liquor shops along highways, which has seen some back-and-forth since.

Importantly, the enthusiasm with which the judiciary has intervened in, and to an extent, controlled executive functions, has perhaps in many ways contributed to its reputation of being ‘the last hope’ or the ‘people’s court’. And, at several points in time, gaining legitimacy thus, in the eyes of the public, may have emboldened the judiciary in the further pursuit of its activist ambitions.

All this has probably led to an unreasonable degree of reliance on the judiciary to preserve our democracy; and in some quarters, the frankly, unsustainable myth of the judiciary’s infallibility. And this reliance, more than the ongoing controversy, reveals the crisis of Indian democracy.

And while the judiciary in India has, for long now, had the advantage of being at the centre of public imagination, perhaps, there has been a subtle reconfiguration of this imagination in recent times, with the BJP forming a majority government in the Centre in 2014. Perhaps, many of those in Team Executive were only drawn in by the Modi-wave, but otherwise, do not have any principled reason to throw their weight behind the executive.

This then, once again, raises interesting questions on how electoral politics may affect the judiciary, and its incentives to intervene in the functioning of the executive.

Public Perception Key to Victory

As Pratap Bhanu Mehta has previously written, “judicial intervention is legitimate to the extent that it does not provoke, formally or informally, a democratic backlash”. And here, judicial intervention need not be understood merely in the activist sense, but also in its more traditional sense – which may suffer when the public support for the judiciary subsides, in comparison to the other arms of the state.

A sense of the reputation or public perception of the judiciary vis-à-vis that of the executive can therefore, be a powerful insight into boundaries that the judiciary is (and will be) able to push in the power struggle between the two. And, it is in moments of crisis such as this, that one can get a whiff of the relative reputation of the judiciary.

Otherwise, most often, when the judiciary and executive are caught in a tussle, public opinion is divided as much on the basis of the underlying legal or policy question, as on the subject of which is the more trustworthy institution.

Now, if only there was a way to measure the strength of the various camps, both in number and influence – it would make the study of the Supreme Court far more exciting.

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(Krithika Ashok teaches at Jindal Global Law School, and is interested in judicial politics. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)