Opinion: Why judiciary can't be committed to the government

Prime Minister Narendra Modi while addressing the Constitution Day celebration, emphasised the need for the government and judiciary to be on the same page for realising the dream of a 'New India', and doubted whether they are working in unison. Though Modi spoke in a placid manner, his Minister of Law and Justice Mr Ravi Shankar Prasad was harsher while reminding the judiciary that law-making must be left in the realm of those elected to make the law and judiciary should not behave like a super-legislature.

He also mockingly reminded that independence of the judiciary is ‘important’ but judicial accountability probity and propriety are too indispensable. The message was a patent that this government like any other authoritative government wants a committed judiciary i.e. a judiciary committed to the policies of the government.

The idea and substance of a committed judiciary were practised in the United States. It is well known that Chief Justice John Marshall imposed upon his colleagues the practice of delivering only unanimous opinions in order to secure the fledgling authority of the Supreme Court.

President Thomas Jefferson’s objections to this development and his initiatives against this practice, including the appointments of justices of his own choice are equally well documented. Jefferson’s appointment of William Johnson as Associate Justice and his subsequent stream of advice to him on breaking Chief Justice Marshall’s hold on the court displays his aspiration of having committed judges.

The Indian Supreme Court could not remain aloof to this idea of the committed judiciary. Since inception, the government attempted to confine the role of judges. Once Pt. Jawaharlal Nehru while discussing the role of judges expressed his view in following words: “If we go wrong here and there, it can be pointed out but in the ultimate analysis no judiciary can stand in judgement over the sovereign will of the entire community. A judge can correct the wrong here and there; they cannot arrogate to themselves the position of the super house of a parliament.”

The craving of having a committed judiciary got more prominence with Indira Gandhi when her election was set aside by the Allahabad High Court and some of her political decisions were challenged in cases like Privy Purse case and Bank Nationalisation Case.

When the nation’s senior-most judges questioned the government in the name of Constitution and justice, they were superseded. Many judges of the High Court who did not toe the line with the government were transferred. Attempts were made to install ‘committed’ judges in the Supreme Court.

These installed committed judges tried to protect the interest of the government and when they could not, they penned down dissenting opinions to prove his loyalty. An attempt was also made by the committed Chief Justice of India to overrule the ‘basic structure doctrine’ by creating a bunch of committed and like-minded judges but fortunately could not succeed.

Mrs Gandhi vindicated her claim for ‘commitment’ by referring President Roosevelt of the United States of America has appointed judges who were committed to his programmes.

The behaviour of the Judge is the fortress for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law. The judges must function without fear and favour otherwise the question of their being impartial or independent will be rendered nugatory.

They are required to ‘uphold the constitution and the laws’, ‘without fear’ and favour. If Judiciary is committed to the policies of the government, the ‘independence of judiciary’ and the ‘system of checks and balances’ which are essential features of the constitution will be in peril and constitutional democracy will be reduced to the dictatorship of the majority.

It will also destroy the federal fabric, another basic structure of the constitution. It will create distrust among the federal Union. There are so many disputes between the States and they would not have trust in the Central Government because they might sense that the Centre would favour those States where their own political party is in power.

But they would have faith in the judiciary which is equipped with jurisdiction to solve these disputes and preserve the federal identity of the constitution. The idea of the committed judiciary will spoil this federal trust and confidence.

(Disclaimer: The author writes here in a personal capacity).