[op-ed snap] The fear of executive courts

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Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Overaching judicial activism and its conseqences


Context

Opinionated judiciary

  1. Justice S.R. Sen of the Meghalaya High Court recently observed in a judgment that “anybody opposing Indian laws and the Constitution cannot be considered citizens of the country”
  2. He thought it fit to further note that in 1947 India “should have been declared a Hindu country”, and that “our beloved Prime Minister” ought to legislate to grant automatic citizenship to (non-Muslim) religious minorities “who have come from Pakistan, Bangladesh and Afghanistan”
  3. Justice Sen’s ill-advised and ill-judged diatribe is only the latest in a series of instances where judges have inserted themselves into fraught political controversies, and have deployed the prestige of judicial office to lend weight to one side of the controversy

What does judicial independence entail?

  1. We normally think about judicial independence as independence from the government
  2. Our Constitution is designed to ensure that judges can do their work “independent” of government influence: fixed salaries, security of tenure, and an appointments process that — through the Supreme Court’s judgments — is insulated from executive control
  3. Independence, however, means something more. It also requires that judges perform their constitutional role independent of personal biases, political and moral beliefs, and partisan ideologies
  4. Of course, adjudication is a political task, and there is no doubt that a judge’s political vision will inform her work but that does not authorise the judge to turn into a politician
  5. At all times, she is bound to maintain primary fidelity to the law and the Constitution: to the text of legal instruments, to the canons of legal interpretation, and to the body of judicial precedent that holds the field
  6. Judicial independence, therefore, depends on judges recognising that law, while being influenced by politics, is not reducible to it

The need of accountability

  1. Law and adjudication must remain autonomous from partisan politics in important ways
  2. And the more we strengthen judicial independence in its first sense — independence from the government — the more attention we must pay to independence in this second sense
  3. This is because control brings with it accountability
  4. Politicians, for example, remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years
  5. Judges who are insulated from any external control are accountable only to themselves, and their own sense of the limits of their constitutional role
  6. Accountability only to oneself, however, is a very weak form of constraint. The temptation to overstep is always immense, more so when such immense power has been placed in one’s own hands

How this crisis deepened?

  1. In the 1980s, there was a rapid expansion of judicial power. This expansion was motivated by a sense that the judiciary had long been a conservative institution, taking the side of landed interests against “the people”. This needed to change
  2. In order to accomplish this, the Supreme Court began to dispense with procedural checks upon its power
  3. Some of these steps were important and necessary, such as allowing “public interest” cases to be filed on behalf of those who were unable to access the courts
  4. Others, however, were double-edged swords, such as diluting the evidentiary standards required to prove disputed facts, and vastly expanding the courts’ discretion to shape and fashion remedies
  5. By the 1990s and the 2000s, under the misleading label of “judicial activism”, the court was beginning to engage in a host of administrative activities, from managing welfare schemes to “beautifying cities” to overseeing anti-corruption initiatives
  6. The constitutional court had become a Supreme ‘Administrative’ Court
  7. A combination of viewing the judiciary as an infallible solution to all social problems, and viewing procedure — that would otherwise constrain judicial power — as an irritant that stands in the way of a truer, purer justice has created the perfect storm that we see today

Towards ‘Executive’ courts

  1. Judgments like the national anthem order, the Tirukkural order (that every student in Tamil Nadu must study the Tirukkural), the NRC process and Justice Sen’s recent foray raise an altogether more frightening prospect: that of an “executive court”
  2. An executive court is a court whose moral and political compass finds itself in alignment with the government of the day, and one that has no compunctions in navigating only according to that compass
  3. Instead of checking and limiting government power, an executive court finds itself marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda

Way forward

  1. We urgently need the return of a thriving legal culture, one that uncompromisingly calls out political posturing
  2. Only a principled consistency in requiring that judges must always give reasons for their judgment can halt the transformation of the constitutional court into an executive court
Judiciary Institutional Issues
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