Don’t Blame Judicial Overreach for Ill-Governance: Manish Tewari

Political class instead of cribbing about judiciary’s overreach can focus on governance for now, writes Manish Tewari

“Step by step, brick by brick, the edifice of India’s legislature is being destroyed,” moaned an NDA/BJP minister. He was referring to the alleged judicial encroachment into the domain of the executive and the legislature. The statement was made in the context of the demand for judicial adjudication of dispute resolution, with regard to the proposed Goods and Services Tax Bill.

The bawling betrays the NDA government’s inability to grasp the transformed governance paradigm of the country, where the executive is just one of the myriad stakeholders in the power dynamics of India today.

On the face of it, the Modi government’s bitterness seems to arise from the Supreme Court’s strike-down of the Constitutional amendment by which the National Judicial Appointments Commission (NJAC) was created by an overwhelming majority, and the recent mauling it received both from the High Court and the Supreme Court on the Uttarakhand matter. But there are deeper issues at play. These matters go to the very heart of the lack of legitimacy of the executive and the legislature.

Limiting the Power of Parliament

In the nascent years of the republic, the judiciary was conservative and cautious, and did not seriously oppose the policy thrusts of the political executive. Though affected interests challenged the most progressive initiatives, commencing with the abolition of zamindari and various other land reform measures, the government of the day was able to have its way on almost all its statutory and policy prescriptions.

The crunch came in 1973 when the apex court propounded the ‘basic structure’ doctrine in the Kesavananda Bharati case and proscribed the amending powers of Parliament, limiting it to not changing the identity of the Constitution. In addition to the inherent tension that started manifesting itself between the executive-legislature combine on one side and the judiciary on another, an issue that took centre stage was the growing perception that the executive had ceased to be the first frontier of justice.

Growing Distrust

In every democracy, there are spirited contests between various political formations that vie to form federal or state governments. Once governments are formed, the incumbent in the saddle endeavours to administer, keeping in mind the principles of equity, justice and fair play. However, the Indian political class cast these time-honoured values by the wayside.

Not only were their actions arbitrary, vindictive and downright malicious against their political opponents but the favours extended to political fellow travellers at the cost of the deserving and the meritorious, instilled a deep distrust among ordinary people. The feeling grew that without influence colloquially called “pervai” or “paua”, nothing would be or could be done, moved or achieved in government.

In an ironic twist, while participation in the democratic processes grew and became more broad-based, the trust quotient plunged. The credibility deficit became all the more pronounced due to boorish behaviour, displayed by elected eminences when Parliament or the various Assemblies were in session.

Hurling mikes, shoes and brawling with each other became the norm rather than exception. It would become headline news the day Parliament would function rather than the day it would be disrupted. Slowly and gradually legislative institutions became irrelevant to the lives and affairs of people. They have even made themselves redundant to the national discourse.

The Influence of the Judiciary

Judicial institutions on the other hand not only maintained their quiet dignity and rectitude, but even expanded their remit through the instrumentality of Public Interest Litigation. People realised that 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.

Right from getting footpaths repaired, to refuse being lifted, to streetlights being made functional, maintenance of public parks and even accessing drinking water, every basic need of the citizen both in the urban and rural areas started landing up at the court’s doorstep.

Overarching Authority of the Judiciary

What were essentially municipal functions that should have been performed in the routine course of things, required judicial torque to start working. 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 for the last man in the last row.

As a result of this enhanced and widened role, the judiciary soon took upon itself the responsibility of even appointing judges. There was no public outcry at this re-interpretation of a constitutional provision that even many jurists believe was detrimental to the system of checks and balances that go to the very core of how a democracy should structure itself.

When the executive tried to wrest this power back through the NJAC (alluded to above) by an overwhelming display of legislative unity across Parliament and the state assemblies, its strike-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 on the sovereign will as represented through the elected representatives, why was there no outcry?

Blame Game

• Jaitley’s recent statement on judicial overreach fails to acknowledge the executive’s lack of good governance.
  
• Kesavananda Bharati case in 1973 was the first instance when the differences between the legislature-executive and judiciary came to the fore.
  
• The PIL revolution that took off in the 80s further reaffirmed people’s faith in the judiciary in securing even basic amenities.
  
• While trust in democratically-elected governments plunged, the judiciary emerged as the last resort for disillusioned citizens.
  
• Instead of blaming the judiciary, the political class needs to reinvent itself and focus on governance.
  

Relying on Judicial Intervention

The simple explanation is that while politicians wanted a say in judicial appointments, people did not. Here, the elected representatives were not articulating the will of the people, but their own desires and aspirations.

It was constitutional politics at play in which people had no interest, and if they would have been called upon to pick sides they would have picked the judiciary over the executive-legislature combine.

That is why, even in dispute resolution pertaining to taxation between the Centre and a state, or for that matter even between states, judicial intervention as demanded 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. Therefore, the judiciary is but the only natural and neutral umpire that can be trusted.

Rescuing Politics and Governance

Hence, it holds to both logic and reason that if the political class does not want its superstructure and foundations to be dismantled “brick by brick”, it would have to reinvent itself.

First and foremost, they would have to demonstrate that the government irrespective of who is in power is for the whole country or the state, rather than just for the factotums of the party in power.

Second, they would have to re-learn what it means to be a legislator and restore the decorum and gravitas of the legislative institutions.

Third, they would have to collectively convince people that politics is a public duty and not a means of personal enrichment.

Fourth, they would need to understand that voter turnouts essentially do not reflect people’s faith in the representative that they are electing, rather in the larger democratic principle – for elections are a contest between the given human material and for the largest swathe of people, it is a zero-sum game.

Fifth and the not the last, it must dawn that expediency and opportunism no longer work. It is not kosher to pompously pontificate that disruption is a legitimate parliamentary tactic while in opposition and then carp that the judiciary is overreaching itself when in government. In essence, politicians would have to rescue politics and governance processes from their own depredations – a task they singularly do not understand or do not want to understand.

(The writer, a lawyer and a former Union Minister is a Congress leader. He can be reached at @manishtewari)

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