Judicial overreach: Why Arun Jaitley and Ravi Shankar Prasad are fighting a lost battle

Who can forget the acerbic barb, near pejorative, mouthed by finance minister Arun Jaitley to describe the Supreme Court judgment, which consigned the National judicial Appointments Commission Act (NJAC) to the dustbin of constitutional history, as "unconstitutional". 

The hard-earned consensus across the deep fissures and political divide, was trashed, in double quick time, by the Constitution bench of the top court as "encroachment into the basic structure of the Constitution vis-a-vis the inalienable principle of independent judiciary as a bulwark  against the other two powerful pillars - legislature and executive - in a functioning democracy".

Arun Jaitley christened it as "tyranny of the unelected". And now on the eve of National Law Day or Constitution Day (November 26), Jaitley bemoaned the judicial activism on display and sought introspection from the learned judges to allow space for the other two pillars.  

Following suit, law minister Ravi Shankar Prasad, who is also a senior advocate of the Supreme Court, too expressed his dismay during the Law Day celebrations. “If a PM and the law minister cannot be trusted with appointment of judges, it is a huge question and the judiciary and polity of his country will have to look into it.”

This, in the context of the decision of the apex court dismantling the NJAC legislation that restored primacy to the executive in appointment of judges to higher courts.

The chief justice though did not let the "dismay" go unanswered. He responded with gusto, “The judiciary gave absolute respect to the law ministry and took its suggestions with mutual respect. There should be no battle for supremacy among the three wings and that we are bound by the principle of constitutional sovereignty,” he said.

In reality, this debate on the "competing interest and powers" between the three pillars of democracy is nothing new. Even our forefathers debated it in the Constituent Assembly and came to the conclusion that there cannot be any  straitjacket formula or walled-in condition-laden roadmap to be laid  out. And that it would have to be left to the "wisdom and high dignity of the men and women who occupy those institutions". The debate is far older than even the Constituent Assembly debates of 1947-1949.

In a healthy and vibrant democracy, there is bound to be constant friction between the three limbs. In fact, it is a necessity for them to be alive and functioning. However, when one institution gains ascendancy over another or the other two, then the system starts to creak. 

For instance, during the infamous  Emergency declared in India on June 26, 1975 - we had the spectacle of executive looming large over the legislature (Parliament succumbing meekly to the wiles and guiles of the Indira Gandhi-led government and even amending the Constitution, as was its wont), and judiciary (with the Supreme Court toeing a timid line in the ADM Jabalpur case by declining to set free a detainee under a draconian legislation by virtually accepting the argument of  the then attorney general Niren De that "a citizen did not have the right to his own life", with only justice HR Khanna shining as the lone beacon of dissenting light).

We lived through all that and the skewed executive dominance was a sad commentary on the democratic ethos in vogue.  LK Advani, who was the minister of information and broadcasting in 1977 during the Janata Party regime (after the Emergency was withdrawn and General Elections conducted) famously said, "You [media] were asked only to bend, but you chose to crawl." Alas, it was true of the other institutions too.

In ordinary times, however, the three branches ought to function harmoniously, yet with a healthy amount of friction, for the betterment of the respective institutions and the institution of democracy.

The anguish of the law minister earlier echoed by the finance minister about "judicial overreach"  ought to be read in the context. The two Union ministers represent the executive and legislative branches. They cannot be seen to be cribbing that the judiciary may be transgressing without introspecting whether it was a case of judicial activism gone astray or judicial activism necessitated.

With the fallen and falling standards in legislative and executive administrative domains, a vacuum inevitably has arisen. The nation has to move on. The judiciary cannot abdicate its constitutional responsibilities in the name of judicial restraint and leave the masses to themselves.

Take the case of the Vishaka vs State of Rajasthan (1997) decision from the Supreme Court - which was nothing, but blatant judicial legislation - a clear encroachment by the Supreme Court into the portals of Parliament. In the context of sexual harassment in workplaces, there was a need felt for a legislation and in the face of legislative vacuum, the top court merely occupied the space, for the larger good of the society.

Electoral democracy is a basic structure of our Constitution and life blood of our nation. Insistence on the candidates filing affidavits of their assets and record of criminal cases, in the course of a decision by Supreme Court (Association for Democratic Reforms case-2002)  was clear law-making. It would be futile to quibble over semantics, when it is clear as daylight. The Supreme Court can be seen to  have "legislated" by judgments on many instances. The issue is not whether, but why?

The "why" is answered by the obvious reality - the inability of the executive and the legislature to come up with solutions and remedies in time and in a manner required.

The judiciary "had to step in" to restore balance for the good of society. It was not of volition, but compulsion. A number of instances can be cited, where the judiciary became the last resort and the Supreme Court intervened as a last straw.

The  National Judicial Appointments Commission Act was a difficult consensus that was achieved despite the obvious political cleavage. But, now the executive and legislature know where they stand and how to render the NJAC "constitutional",  if they are inclined to. But can they  search  their hearts  and claim that in the present vitiated and politically charged climate, they can even try it? "They" need to  bring about a consensus to defeat the "machinations" of a collegium takeover.  Can they? No. They can’t. For, the executive is overzealous and overbearing and legislature is deeply  divided. And, therefore, judicial  activism is here to stay.

The cabinet ministers would  do well to look within before they accuse the top court of indulging in activism. "We the people" do not see it that way. Where the executive and legislature have willingly or otherwise exited, there is a natural tendency and ascendancy for the judiciary to step in and fill the space.

Equally, we are not naïve to believe that the judiciary was not overreaching, for we are alive and aware that it is, well beyond the known cannons of "activism", because they need to provide access to justice to "we the people". Or so, we believe. 

Also read: Why JS Khehar was arguably one of the worst Chief Justices of India