By Narasimhan Vijayaraghavan
Sitting in the foyer of the famous Tata heritage hotel, next to Gateway of India,Mumbai, in 1994, the late lamented Justice Antonin Scalia said,” It is undoubtedly clear and evident that the Supreme Court of India is the most powerful institution in the world. They tower above any other,in any democratic polity, and the executive and legislature are compelled to to do catch up all the time”. It seems that the Executive and Legislature in India are still doing ‘catch up’.
These words crossed one’s mind, upon reading the stinging verdict of 5 law lords from the judicial pulpit seemingly ‘Stripping the Executive of its powers to appoint Election Commissioners’ of India’. The order decreed that ‘the appointments should be made by the president of India based on advice from a committee comprising the prime minister, the leader of opposition in the Lok Sabha and the chief justice of India’.
The impish and inimitable Scalia could not have been more right. Why have things come to such a pass? Why?
The Executive and Legislatures in India are squarely to blame. When they abdicate their basic responsibilities under the Constitution of India or act in defiance of constitutional norms, the third pillar of democracy inevitably steps in to fill the vacuum. Academicians and true blue conservatives may be aghast. But then who is to blame?
Time for the politicians in India to become aware. And possibly pivot. Supreme Court is a ‘political institution’ said Benjamin Cardozo. Ours is no different. Be it the Collegium or Visakha guidelines (sexual harassment in workplaces-which later Parliament belatedly legislated) or the recent decision on 2nd March,2023 in Election Commissioners’ appointments ( one can multiply such instances, but it would be otiose), the apex court stepped in because the other two pillars offered space. They failed or their omissions and commissions became ‘intolerable’ as academician A G Noorani once put it, in a slightly different context.
Alexander Hamilton famously bemoaned in the Federalist Paper No.78 ( the papers are akin to our constituent assembly debates) “The judiciary ….has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” In Federalist No.78 Alexander Hamilton pondered that the judiciary would be the least dangerous branch of government, comparing it to the executive and legislative branches who would control the military and the money”. The Constitution solidified judicial independence the use of separation of powers, providing each branch with independent powers and responsibilities.How untrue in India? Judgment has triumphed over ‘military and money’!
No point would be served in blaming the Judiciary for its overreach. Or purpose in calling it an ‘unelected tyranny’ like Arun Jaitley called the 2016 decision of Supreme Court to dump the National Judicial Appointments Commission Act,2014,while retaining the power to appoint judges to constitutional courts in Collegium. Politicians can rant and rave ( depending on which side of the fence they are at the given moment), but until and unless they realize that they are solely responsible for this state of affairs, things may never change.
The ordinary Indian places more faith and respect in Judiciary as an institution ( after the Armed Forces , of course) and the politicians come last, doing catch up there too. The self-same Scalia was scathing in his criticism of Obamacare judgment and later in the same-sex marriage as ‘naked judicial legislation’. No less. But he was in the dissent, for in the US of A also, the politicians were twiddling their thumb, unable and unwilling to act, as White House or US Congress.
Writing in dissent against the majority opinion of the US Supreme Court in Obergefell vs Hodges, legalising gay marriage by judicial pronouncement, Justice Antonin Scalia, pungently wrote in fury: “And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: No social transformation without representation.”
On 2nd March,2023, our Supreme Court thundered, “Democracy is inexplicably intertwined with power to the people…Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner… The means to gain power in a democracy must remain pure and abide by the Constitution and the laws. Election Commission cannot claim to be independent then act in an unfair manner. A person in state of obligation to the state cannot have an independent frame of mind. An independent person will not be servile to those in power”.
Now read what a scholar wrote on Scalia’s dissents, “ Scalia fiercely criticised judicial excess — activist interpretations of the constitution that had little basis in text or the original intent of its framers. To him, whether homosexuality was amoral was not the question before the court. Instead, it was a more limited inquiry — whether the court could imbibe changing social mores and interpret the constitution in a manner that furthered social transformation or should defer to popularly elected legislatures to do so. In some sense, this seemingly limited inquiry was more expansive — it was an inquiry about the nature of democracy in America itself. And Scalia’s answer was clear — the protection of democracy is not the dominant preserve of nine intelligent, rational judges; it is instead the primary prerogative of millions of rambunctious Americans whom the constitution compendiously refers to as the People”.
That dear reader may apply to India too. It may be singularly unfortunate for the political class viz. read ruling dispensation not to read the tea leaves even now.Be it the voluble Vice-President of India or the sound and fury Union Law Minister, they will be missing the wood for the trees, if they take out their anger or agony, where it may not belong. Who is responsible? It is the Executive and Legislature. By their pusillanimous responses and disregard for Rule of Law in such appointments, by serving political not public or national interest.
For heaven’s sake, let us get it right. Judiciary ought not to be seen as legislating contrary to Art.245 of of Constitution as ‘making law’ is legislative domain. ‘ They have always done it’ as Chief Justice P N Bhagwati quoted Lord Reid. They will continue to , may and must, if Executive and Legislature fail us repeatedly. What is happening in Israel on the constitutional plane or what transpired in Chile are not surprises.
Time for politicians to get together. Realize their follies and fallacious ways, instead of venting impotent rage against judiciary. They deserve it. They brought it on themselves. Will they ever change or pivot from their present ways? Most unlikely. Until then, the larger question would remain- Do we deserve ‘all this’ from the three pillars as We the People? You be the Judge.
(Author of Constitution & its Making/Working, OakBridge,2020/2021- practicing advocate in the Madras High Court).