Conflict between judiciary and the indian government in 1970s
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A confrontation is brewing between the executive and the judiciary with the installation of a majority-backed Narendra Modi government. It started with the government's decision to question the appointment of Gopal Subramanium as Supreme Court judge; the tensions were seemingly exacerbated by quick parliamentary approval for two National Judicial Appointments Commission (NJAC) Bills, including one that gives the NJAC constitutional status.
Supreme Court. Agencies
One thing needs to be stated upfront. While the immediate triggers relate to the government’s actions, the confrontation was anyway building up for some time due to three other factors: the steady encroachment on legislative space by the judiciary (2G judgment on auctions, mining bans, setting up of SIT on black money, etc), the subversion of the original constitutional mandate on judicial appointments by the Supreme Court during an era of weak governments, and rising public concerns about corruption in the judiciary.
The reason why matters have come to a head now (and not earlier) is clearly the arrival of a strong government which is not willing to let the courts walk over its jurisdiction. With the NDA government giving its nod for the NJAC constitutional amendment bill to be sent to the states for ratification (15 states have to pass it before it becomes law), the Supreme Court will be hearing two petitions challenging the NJAC bills. With other matters involving government also washing up in the Supreme Court - including the constitution of the Lokpal that needs a leader of the opposition (LoP) to join the selection panel when there is no LoP possible now, given the Congress party's low Lok Sabha numbers - tensions are bound to escalate.
Some tension between executive and judiciary is inevitable and even good because their jurisdictions are not watertight. While parliament has the unfettered right to pass laws, the courts have the right to check if these laws are in tune with the basic structure of the constitution. This creative tension keeps both the executive and the judiciary on guard - and mutually accountable. But if this tension degenerates into open war and ego tussles, it can be ruinous for the country and governance. This is what both government and judiciary must seek to avoid.
Right now, though, it is important for the judiciary to realise that it has encroached too must into executive/legislative turf, and must seek to withdraw gracefully.
Contrary to general assumptions, the current tensions between executive and judiciary have their origins not in the specific acts of the Modi government, but in the formation of relatively weak coalition governments for the bulk of the last 25 years. Starting with the VP Singh government in 1989, the central government has been politically weak most of the time. The only two periods of relative stability were during the Narasimha Rao and Atal Behari Vajpayee governments. The former was solidified by external financial bankruptcy, which muted the opposition, and the latter by the post-Kargil verdict that gave the NDA a clear mandate. But even Rao and Vajpayee did not run majority governments; the remaining coalition governments were politically even weaker.
Political power vacuums are an open invitation to other creatures of the constitution to extend their reach, and this what the courts did when executive authority declined – especially during the 1991-99 phase, and during the 2009-14 one, when the executive was weakened by the lack of a clear electoral mandate, sometimes worsened by bad political arrangements (Prime Ministers with no support, or nominated PM’s with no political authority).
For example, in the 1990s the Supreme Court completely trampled over the constitutional provision that the government will appoint Supreme Court judges after consulting the judiciary. It made the collegium system supreme in two judgments delivered in 1992 and 1998. In both years, political authority was weak. In contrast, in 1981, a year after Indira Gandhi stomped back to power with a hefty majority, the Supreme Court had, in fact, upheld the old constitutional scheme of government appointing judges after consulting the judiciary.
In 2011, with the moral authority of the UPA-2 eroded by scams and its political authority residing outside the government in Sonia Gandhi, the Supreme Court stepped into the power breach. In the 2G case verdict, it not only cancelled the telecom licences and spectrum awarded by A Raja through a dubious process, but also laid down policy on how scarce natural resources should be sold – only by auctions. Pricing of natural resources is in the area of policy, and outside the scope of the judiciary – unless the process itself is vitiated by unfairness or opaqueness.