To legitimise right from wrong, fair from unfair, constitutionally moral from one that diminishes constitutional morality, India increasingly looks not to its elected representatives in assemblies (as they should in a democracy) but to its ‘unelected’ oracles in judicial robes.
Strategically, the political class has deliberately seceded formal opining on contentious issues to the apolitical professionals in the judicial system. They could personally belong to any of the various ideological persuasions, but collectively represent a homogenous optic of the judicial system. This visibilised homogeneity is essentially optics only, as a set of individuals is susceptible to personal impulses, albeit still required to back their positions with hard constitutional rationale, rules, and references.
Their personal ideological anchorage is expected to be irrelevant to their professional statements. Their outpourings are fine-combed for contextualising decisions, hence can never be lax. Their pronouncements (even short of formal judgements) bear a lot more credibility and seriousness than that of the executive. Why so?
Why do we entrust our deepest political-societal disagreements onto the unelected, as opposed to those whom we elected to govern us? Whatever happened to that lazy refrain that ‘Judiciary is very slow’ or ‘Judiciary is very corrupt’? Is the executive system perceived to be even more painfully protracted, vile and beyond repair?
Like any constitutional and participative democracy, the will of the citizenry is represented by the people it sends to the State and National assemblies. The executive ought to be sacrosanct and supreme, and so it was wired and protected through our Constitution. But because the political executive has regressively become synonymous to acute partisanship, as opposed to just political, every action and word of the executive needs the ‘nonpartisan’ endorsement (read, professional or constitutionally backed legitimacy) of the judicial system.
It could almost be tantamount to a ‘firing-from-theshoulder-of’ kind of conundrum for the judicial system, which could consequently bring pressures of avoidable considerations and individual compromises, into what is still respected as an institution of professional independence, competence and relative nonpartisanship. So, the courts must decide on the abrogation of Article 370, they must decide on relations between consenting adults, they must decide if a former sporting body chief muscled his way into wanton improprieties, they must decide on matters of faith etc.; the list becomes endless. Is it wrong for the judiciary to adjudicate on contentious issues?
Certainly not, as that is the reason for its existence ~ to ensure the rule of law and valid interpretation, as also offer fair redressal opportunities. But for it to be used as a convenient pawn to shirk responsibilities, buy time, and worse, to ‘influence’ its adjudications, is fraught with incalculable risks of attempting to crumble the entire balance of constitutional ‘checks and measures’.
Far too often, the executive seems to gingerly unleash a testballoon position on a contentious issue (as opposed to a firm decision with accompanying constitutional justifications) and then readily offers to get a judicial validation of the same.
Should the judicial opinion go in its favour, the credit is all for the dispensation of the day to hog, and should it go otherwise, the age old chorus of changing the collegium system, ‘judicial corruption’ and even purported ideological biases of the ‘milords’ make the rounds. Basically, heads I win, tails you lose.
The guardrails of the constitutional checks-and-balances system have not been usurped by the judicial system as murmured, in as much as has been manipulated towards its own advantage by elements of the unhinged executive.
But because the ‘monopoly on truth’ resides with the executive in terms of its equations and leverage with the media, a decidedly gentler light is thrown on the executive as opposed to a spokesperson-less realm of the judicial system, which really has no dedicated personnel to defend its actions and positions. Sadly, these days talk tends to influence more than actions.
History is witness that some of the most restorative, progressive, and reformative corrections have been initiated with the sou motu intervention by the judicial system. Expectedly the executive labels its discomfort by alluding to judicial activism as intruding into the turf of the executive. But often it has only been the judicial system that has disallowed the governance impulses that are inherently majoritarian, authoritarian, or blatantly partisan, at the cost of constitutional spirit and morality.
Pandering to frenetic calls of doing-away with the collegium system (reforms to collegium system, tellingly are never on the menu ~ as it must simply go!) is driven by frustrations of a still working ‘checksand-balances’ system that disables partisan unilateralism.
This is not to deny the crying need of further judicial reforms, and the same has been readily accepted by virtually all within the judicial system, but that is not the reformatory and progressive emotion that besets the executive’s pitch for doing away with collegium system, completely.
But because the executive and especially the political classes have failed to posit, nurture, and deepen the roots of democracy, the judicial system which ought to only maintain the guardrails of the Indian Constitution to ensure democracy, is desperately beseeched to go far beyond.
It’s not appropriation of the executive’s turf as much as the citizenry’s desperate plea to interject as a far more trusted, responsible, and constitutionally correct institution. For whatever it is worth, the denial of the government’s say in appointments to the judicial roles in India has at least spared the American experience where appointments to the judiciary as ‘conservative’ (read, Republican) or ‘liberal’ (read, Democrat) denominations are openly partisan in nature. At least the insulated and isolated realm of the Indian judicial system is beyond aspersions of partisanship, relatively speaking.
The only occasions when the hallowed and healthy distance between the judiciary and the executive was indeed compromised and brought closer than required (with carrotand-stick offers), it was the executive that made the unwarranted outreach. That some from the judicial system took the proverbial and literal bait is an individual and human folly, not institutional.
The judicial system cannot by design be concerned about popularity (as opposed to the executive, where it is the primary motivation) and is driven only by constitutional propriety, and at best its legitimacy, as an independent institution.
Loading it with ‘intent’ beyond its mandated weight is when the issue of sub-optimal performance, distractions and worse, partisanship, creeps in. At an overall level the citizenry with all its perceived concerns of delayed justice, procedural nightmares et al still reposes trust and faith on the judicial system. This is a necessity for the functioning of democracy and the onus on not leveraging it towards partisan ends is on the executive.
Calls for judicial reforms are indeed valid and must be undertaken, but those that seek to diminish the independence, assertion, and its abilities of ‘checks-and-balances’ must be seen through and protected against. It is not just to defend the judicial system, as much as it is to defend democracy and India at large.
(The writer is Lt Gen PVSM, AVSM (Retd), and former Lt Governor of Andaman & Nicobar Islands and Puducherry)