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Attempts to coerce judiciary wrong

DH News Services, Bengaluru, Dec 1 2017, 10:47 IST

The last few days were marked by exchanges, not always pleasant, between senior members of the Union government and the judiciary. Union Law Minister Ravi Shankar Prasad and Finance Minister Arun Jaitley raised issues concerning the judiciary's role and powers vis-a-vis the executive and the legislature in very unacceptable ways. The Chief Justice of India Dipak Misra had to counter some statements made by the law minister as he thought there had arisen a need to defend the judiciary and restate the constitutional position on the right relationship between different organs of State. Prime Minister Narendra Modi also spoke about the need for balance between the organs and institutions of State. The exchanges created the impression that both sides had much to talk to and about each other. Persistent and open talk about relations happens when the relations are strained. The government side was petulant and aggressive, and some points which were made by it will not help to improve relations.

Ravi Shankar Prasad's suggestion that the judiciary should trust the prime minister is wrong and ill-conceived. That rightly drew the CJI's comment that there should be mutual respect between the organs of State which are bound by the principle of constitutional sovereignty. Personal trust, which the minister recommended, has no place in institutional relationships. He imported the idea from the politics of the day, echoing the calls made every day to have faith in the "big leader". Reposing faith in a single leader is undemocratic and dangerous, and there are lessons from the past to prove this. The relations and dealings between institutions of State should be based on more solid grounds. The argument that the nation trusts the prime minister with its nuclear weapons is no reason to entrust him with decisions that should be taken by other constitutional authorities. The idea of separation of powers and the checks and balances in the constitutional scheme should govern institutional relations.

There have been cases of judicial overreach, but many of them were the result of the government and the executive failing to do what was expected of it. Arun Jaitley criticised judicial activism and wondered what would happen if the government stepped in to do the judiciary's job. The CJI made it clear that the court would not hesitate to act if governments failed to protect fundamental rights. All these postures are the result of the differences between the government and the Supreme Court over the Memorandum of Procedure (MoP) for the appointment of judges after the NJAC legislation was struck down by the Supreme Court. These differences should be resolved at the earliest and the public bickering should end.

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