Can judicial ascendancy be rolled back? - Essay, UPSC MAINS | Course for UPPSC Preparation - UPPSC (UP) PDF Download

Can judicial ascendancy be rolled back?

STRUCTURE

(1) Opening    —    The Delicate balance of power.

(2) Body    —    Example of U.S. Supreme Court.

    —    Judgements of the SC and HC in the past.

    —    Backing down under pressure.

    —    Courts needed to be inventive.

    —    Issue of appointments of judges.

    —    Constitutional activist.

    —    Judicial policy making.

    —    Constitutional vigilantism.

(3) Closing    —    Quote M.N. Venkatachaliah.

Sometimes legislatures expressed concern over court orders that disturbed “the delicate balance of power” between the legislature and the judiciary, a drawing pointed attention to the creeping ascendancy of the judiciary over the other two branches in the constitutional scheme of things becomes necessary. This climb, which started in the second half of the 1980s, derives its strength from two sources. The first is the power to interpret the Constitution which, in the words of Chief Justice Hughes of the U.S. Supreme Court, has created a situation where “We are all under the constitution, but the constitution is what the judges say it is.” The second is the power of appointing judges and shaping the philosophy and outlook of the court, which is vested in the executive by the Constitution but which has over the years been taken over by the higher judiciary. 

In one of the most bitter confrontations with the U.S. Supreme Court, President Franklin Roosevelt, furious over the striking down of most of the New Deal legislation that he had proposed, sought powers to appoint more judges to the court, declaring that the nation “must take action to save the Constitution from the Court and the Court from itself”. His plan to “infuse new blood” and save the “national Constitution from the hardening of the judicial arteries” was seen by critics as an attempt at packing the Supreme Court, provoking nation-wide outrage and ending in a humiliating defeat in the Senate. The message, however, was not lost on the court, with one of the judges switching his vote in support of the laws that Roosevelt championed who had gone through his first term without getting to appoint a single judge to the Supreme Court, was able to bring in seven new judges and get a court of his own making.

The echo of this confrontation was to be heard four decades later in India, when angered over the Supreme Court declaring unconstitutional the nationalisation of banks and the abolition of privy purses of princes Indira Gandhi sought to appoint “committed judges” who would support the government’s political philosophy. This suspicion of the judges in office, combined with concern over the court’s likely stand on her election case that was pending before the Allahabad High Court, led to the supersession of three of the senior most judges of the Supreme Court Chief Justice. Later, during the Emergency, there was a wholesale transfer of 16 judges of the high courts, many of whom had ruled in favour of political detenus who had challenged their arrests. 

When the Emergency detentions came up in appeal before the Supreme Court, the Government mounted an aggressive campaign, circulating proposals to virtually write a new constitution and curb the power of the courts. Faced with this threat of a rewritten constitution and the brazen and partisan use of the power to appoint and transfer judges, the judiciary quickly backed down. In the infamous habeas corpus case, the Supreme Court ruled in a four-to-one verdict (Justice H.R. Khanna being the lone dissenting voice) that persons arrested under the Maintenance of Internal Security Act had no remedy as the right to move the courts for the protection of life and liberty had been suspended by a Presidential order. 

After that traumatic experience, there was a realisation that the courts  needed to be inventive and insulate themselves from political pressures. Judicial appointments are generally an executive function but uniquely among the constitutions of the world, the Indian Constitution requires the government to consult the Chief Justices of the Supreme Court and the High Courts before appointing judges. In S.P. Gupta’s case decided in 1981, a seven-judge bench of the Supreme Court still smarting under the assault but not yet willing to move away from its traditional deference in matters left to the executive in the Constitution, held that consultation with the chief justice did not mean concurrence and that the chief justice did not enjoy primacy in the matter of judicial appointments. This judgment led to a series of controversial appointments and transfers and a backlash was inevitable. 

By 1993, when issue of appointments was raised again in the Supreme Court Advocates-on-Record Association case, the mood had changed and a bench of nine judges ruled by a majority of seven that the Chief Justice of India enjoyed primacy in judicial appointments and devised a special procedure for the appointment of Supreme Court judges that excluded executive say for “protecting the integrity and guarding the independence of the Judiciary.” The recommendation for appointment of a judge was to be made by the Chief Justice in Consultation with two of his senior most colleagues and the government had no option but to accept it. This decision was reaffirmed unanimously by a nine-judge bench on a presidential reference in 1998 with the change that the Chief Justice should consult four of his colleagues instead of two. 

Stepping beyond the purely consultative role in appointments assigned to it in the Constitution, it has become an institution that decides on its own composition, with the existing judges empowered to shape future courts in their own image. If the powers appropriated have made the Indian judiciary perhaps the most powerful in the world, judicial ascendancy has turned out to be largely a force for the good. Often it has been quick to provide relief to individuals faced with arbitrary detention by the government or those facing threats to their liberty from legislatures claiming to exercise their privileges. A second area of increased activism is in the working of the Constitution, in making sure that the executive and the legislature stay within the bounds and play by the rules of the game, written as well as unwritten. Thus, if in an earlier period it had deferred to executive judgement in the matter of the Centre dismissing 

governments in the States and imposing President’s Rule, in the Bommai case decided even before it gained power over judicial appointments, it fettered the executive, making the issue justiciable and barring dissolution of State legislatures before parliamentary approval. It carried this constitutional activism farther in the case of dismissal of the Kalyan Singh Government in Uttar Pradesh where it ordered a composite floor test, and in Jharkhand when it set the rules for the floor test. 

A third area of extended activism has been in social and economic policy making. Whether in the case of the pollution around the Taj Mahal or air pollution in Delhi, it has been virtually setting policy on critical issues of the environment. The ban on smoking in public places ordered by the Supreme Court was another instance of activism as was the order drafting detailed rules for protection of women from sexual harassment in the work place. Many of these orders were based on creative legal reasoning that read into the right to life such rights as the right to a clean and unpolluted environment and the right to a life with dignity.

If in all these areas the court’s decision had a touch of constitutional vigilantism, because they always brought about desired outcomes, they were generally applauded by the public. More important, they have underlined the failures of the executive and the legislatures who have not shown enough sensitivity or brought political will to bear on these areas of concern. Yet, in no democratic country are such issues of policy decided by the judiciary as they call for debate, the setting of priorities and the balancing of interests brought the political system, and there are clearly no judicially determinable or manageable standards. The most serious objection to such judicial policy making is of course that the judiciary is an unelected and non-representative body that is not accountable to the people and its growing power represented in the words of Thomas Jefferson, “the despotism of an oligarchy.” He spoke of the judiciary “working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

If then judiciary is all powerful and self-appointing, where will the check on its power come from, how will the constitutional scheme that allowed more space for the executive and the legislature be restored? As of now, judicial statesmanship seems to be the answer. As the National Commission to Review the Working of the Constitution headed by the former Chief Justice of India, M.N. Venkatachaliah, observed, “Constitutional adjudications have an inevitable legislative element. But then, they need great wisdom and restraint on the part of the judges in wielding the high power lest they erect their own prejudices into principles.”