Judicious balance

FOR two successive days the Chief Justice of India and various union ministers expressed themselves to have different ideas about the judiciary’s role in our constitutional scheme of things. There is an air of disagreeableness to these differences. The union ministers, rather rambunctiously, gave the impression of speaking down to the judiciary. Arguably, this bluff and bluster is the very signature tune of the Modi government, meted out to all and sundry and this weekend it just happened to be the judiciary’s turn to be at the receiving end. This is not the first time the NDA regime has articulated its views in this vein. Indeed, any government that enjoys a comfortable majority in the Lok Sabha chafes at any institutional restraint. 

The executive’s  aggressive tone can be traced to the unfortunate erosion the judiciary has suffered in its image in recent months. There have been far too many occasions when the higher judiciary did not add to its institutional reputation. The Supreme Court had taken a bold and firm stand on the National Judicial Appointment Commission, thereby reviving the Collegium. Unstated in that assertion was a claim that the judiciary had the talent, competence, rectitude and temperament to produce a slate of unblemished nominees for High Courts and the Supreme Court. Unfortunately, the judiciary is yet to reclaim the high moral ground vis-à-vis the other two constitutional organs.

Nonetheless, the Union Law Minister’s contention that the judiciary must trust the Prime Minister in the appointment of judges is a flawed argument. Elections are conducted in a democratic arrangement to choose a political party to exercise the executive power of the State; in the process, someone gets to become the prime minister who, in turn, is deemed to be the leader of the country, enjoying the trust and confidence of the citizens. Yet the very essence of the constitutional democracy is that the executive power must remain subject to limits prescribed in the Constitution, and it is for the judiciary to define and determine, from time to time, those limits. Judicial review, even judicial activism, remains central to the larger architecture of constraints and restraints.