A committed judiciary is detrimental to democracy

Delivering the valedictory speech of Constitution Day celebrations, Prime Minister Narendra Modi emphasised the need for the government and the judiciary to be on the same page to realise the dream of 'New India', and doubted whether they are working in unison. Modi spoke in a placid tone, but his Minister of Law and Justice Ravi Shankar Prasad was harsher in reminding the judiciary that law-making must be left to those elected to make laws and that the judiciary should not behave like a super-legislature. He also sardonically remarked that while independence of the judiciary is important, judicial accountability, probity and propriety, too, are indispensable.

The message was loud and clear: that this government, like any other authoritarian government, wants a committed judiciary, that is, a judiciary committed to the policies of the government.

The idea and substance of a committed judiciary was practiced in the United States. It is well known that Chief Justice John Marshall imposed upon his colleagues the practice of delivering only unanimous opinions in order to secure the fledgling authority of the Supreme Court. President Thomas Jefferson's objections to this development and his initia ­tives against this practice, including appointment of justices   of his own choice, are equally well-documented. Jefferson's appointment of William   Johnson as Associate Justice and his subsequent stream of advice to him on breaking Chief Justice Marshall's hold on the court displayed his desire for committed judges.

The Supreme Court of India could not remain aloof to this idea of committed judiciary. Since inception, successive governments have desired and attempted to confine the role of judges. Jawaharlal Nehru, the first prime minister, once while discussing the role of judges expressed his view in the following words: "If we go wrong here and there, it can be pointed out, but in the ultimate analysis, no judiciary can stand in judgement over the sovereign will of the entire community. Judges can correct the wrong here and there; they cannot arrogate to themselves the position of super-house of a parliament."

The desire to have a committed Judiciary increased during Indira Gandhi's time, after her election was set aside by the Allahabad High Court and some of her political decisions were challenged, in cases like Madhav Rao Scindia vs Union of India (the Privy Purse Case) and R C Cooper vs Union of India  (the Bank Nationalisation Case). When the nation's senior-most judges questioned the government in the name of the Constitution and justice, they were superseded.

Justice A N Ray was appointed Chief Justice of India, superseding the three senior-most judges after the unfavourable decision in the Keshavanand Bharati Case. Later Justice H R Khanna, the senior-most judge of the Supreme Court was superseded by Justice M H Beg, a long-time friend of the Nehru-Gandhi family, after his powerful dissent in ADM Jabalpur vs Shivakant Shukla against the proclamation of Emergency by Indira Gandhi.

Many judges of the high court who did not toe government's line were transferred. Attempts were made to install committed judges in the Supreme Court. George H Gadbois Jr. in his book 'Judges of the Supreme Court of India' has referred to some of the judicial appointments and brings out crucial findings about the role of the chief justice of India and the sway of the prime minister in the appointment of judges and chief justices.

These committed judges tried their best to protect the interest of the government and, when they could not, they penned down dissenting opinions to show their loyalty to Mrs Gandhi. An attempt was also made by the committed chief justice of India to overrule the basic structure doctrine by creating a bench of committed and like-minded judges. Fortunately, it did not succeed. Mrs Gandhi sought to vindicate her claim for 'commitment' by referring to US President Roosevelt having appointed judges who were committed to his programmes.

Independent judiciary

The behaviour of a judge is the fortress within which people enjoy the fruits of democracy, liberty and justice. Judges must function without fear or favour. Otherwise, the question of their being impartial or independent will be rendered nugatory. They are required to "uphold the constitution and the laws", "without fear" (of the government) or (expecting) favour.

If the judiciary is committed to the policies of the government, the 'independence of the judiciary' and the 'system of checks and balances,' which are essential features of the Constitution, will be in peril and constitutional democracy will be reduced to the dictatorship of the majority. Sixty-eight years of living under a constitutional system has demonstrated that politicians in India are not guided by moral principles, their only endeavour is to get power and retain it by one or the other means. If the judiciary becomes committed to their policies, it will be difficult for the people at large to check the party in power from acting according to its own whims and fancies.

A committed judiciary will also destroy the federal fabric, another basic structure of the Constitution. It will create distrust among the states of the Union of India. There are so many disputes between the states and they would not have trust in the central govern ­ment because they might sense that the ruling party at the Centre favours states where, too, it is in power. But they would have faith in the judiciary, which is equipped with original jurisdiction to solve these disputes and preserve the federal identity of the Constitution. The idea of a committed judiciary will spoil this federal trust and confidence.

(The writer is Associate Professor of Law, NLU Odisha)

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