Tussle between Executive and Judiciary

Kr Swarn Kishore Singh
Few months ago, I accompanied a close friend of mine, an advocate to a govern-ment office for some work which was unknown to me at the time when I started my journey with him. Reaching the office, I discovered that my friend was there for execution of an order which was sadly the all popular consideration order. When we reached the concerned official, he was a guy supposedly on the brink of his retirement, grey haired clerical guy, he read the order and said; “Ab aap high court- shi court bhool jao, aapke judge ne ab mujhko judge bana diya hai, aur ab aapka faisla meine karna hai”, i.e Forget about high court or anything, your judge has delegated his job to me and therefore made me the judge and therefore I will decide what should be done. It don’t know how these words went with my colleague but for me it was nothing less than a dagger down my throat. Simultaneously few questions crossed my mind; firstly, is that clerk the appropriate person to interpret an order of High Court, secondly why does court delegate such crucial job of adjudication to these  clerks, thirdly why does not court itself adjudicate, which forms its basic existential job. Is it not demeaning that the job of a High Court judge is delegated to a clerk. The people we as advocates exalt and honour so much and call them My Lords, are having so petty an impression among these government officials and specifically that  clerks. How come these people demean the court and the process of law so much? The amount of reverence executive is having for judiciary could be easily estimated by the number of contempt petitions gathering dust in Indian courts. Is it because of aggression of executive or passiveness of judiciary?
These questions force me to quote Justice Bashir Ahmed Khan, the celebrated Chief Justice of High Court of Jammu & Kashmir. He explained the magnitude of difficulties he faced during his tenure as a judge of High Court of J&K in an interview to a popular legal online portal, ” In J&K, every administrator was a law unto himself. The Court process was not working, and a judge had to work under great stress and fear if he was honest. A Damocles sword would always loom large on a judge’s head. There was always a fear that you would be taken to task for your orders. There was no freedom to work in that atmosphere.”
Pressure, fear, stress, Damocles sword, lack of freedom, these are something felt by a High Court judge not by a common person, Imagine!
Firstly let me describe what is a consideration order. It is a judicial order which is a sort of escape route for most of the judges who do not find it appropriate to displease the executive and put in danger their repo with them which could consequently affect their growth later on. So they safely refer the matter back to the executive which is the aggressor as well and ask him to do justice instead. On this I remember a popular couplet from a Gazal sung by Jagjit Singh ji and written by Sh. Sudarshan faqir, which is as;
Aadmi Aadmi ko kya dega,
Jo bhi dega wo khuda dega,
Mera qaatil hi mera Munsiff hai,
Kya mere Haq mein faisla dega!
(What can a man offer another man, whatever you get, you will get it from God,
My murderer is my judge too, do you think he will give the verdict in my favour!)
The parties fight long battles in the courts for justice and for attaining justice, adjudication by court is a sine qua non. Imagine a state in which judiciary is shifting the onus on executive to adjudicate and decide. And in that case two fearful situations arise, first the magnitude of brute power enjoyed by the executive whereby they will be crushing the rights of people, when even the judiciary is playing second fiddle by being just another reference forum and other is the lack of veracity and existential crisis of judiciary wherein they are just a body which can refer a matter and in the maximum probability appeal before the executive to decide the matter in a specific time period.
This passiveness is not because of passiveness of the judges or over-aggressiveness of executive, but because of lack of support system within the ju-diciary. If a judge adjudicates in a matter and finds executive on a wrong foot and hence passes an adverse order against the government. The executive in turn stalls the growth of that very judge and doesn’t allow him go up the ladder. In such a case the role of judiciary becomes more crucial and the highest judicial institution. Supreme Court of India is supposed to make it a point for all the judicial officers across the country and send them a message i.e. Look, all the judicial officers all across the country, do your job with integrity and dedication and for every such thing you did the Supreme Court of India stands rock solid behind them. Independence of judiciary is the basic structure of our constitution and it needs to be preserved and conserved at any cost whatsoever. In past we have seen a case wherein Justice Jayant Patel was strangulated so much that he had to resign notwithstanding the fact that he had a phenomenal record as a judge of High Court and had some very good years of service to judiciary and country left with him, but alas! And even worse than the aggressiveness of executive was the passiveness of Judiciary. The Supreme Court stood silent when one of the soldiers of Indian Judiciary was slayed mercilessly. Another case was the stalling of elevation of Gopal Subramaniam, Senior Advocate to Supreme Court and consequently Mr. Subramaniam withdrew his candidature. The manner in which the candidature of Gopal Subramaniam was impugned reminds me of witch hunt of Robert Bork received for his elevation to US Supreme Court even after nomination by President Ronald Reagan. In Gopal Subramaniam’s  case, Supreme Court of India again stood silent while making it look like an issue between the individual and the executive only. Later the then CJI Justice Lodha had said that Mr. Subramaniam should have waited till vacations were over. This was very criminally callous, can the integrity of an institution be left to be demolished and independence of judiciary allowed to be robbed just because there were vacations going on in Supreme Court. Being the head of institution, that too of such a crucial institution, we can ill-afford him to be off duty. This bullying of certain judges and subsequent silence of the Apex Court over this is setting very wrong precedents. The fresh case of elevation of Justice KM Joseph is another classic example of executive trying to manipulate the behaviour of judges. Such incidents encourage the executive to keep on bullying the judge who would ever try to rein in on the tyranny of the executive. And not only executive but the manner in which the Congress party has treated the Chief Justice of India by moving an impeachment motion against him speaks a lot about the extent to which the politicians could bully the judiciary. When even the Chief Justice of India is not immune to bullying and another Chief Justice had to even cry before them for sake of independence of judiciary, you can imagine the gravity of the situation. The message from executive is loud and clear, “Just tow our line or face the repercussions”.
A lot of ruthless majoritarians claim that since India is a democracy therefore the will of people which is reflected by legislature should be supreme, therefore judi-ciary isn’t supposed to meddle with that. Infact they forget that India isn’t just a plain democracy but a democratic republic, wherein there is a constitutional set up to ensure the functioning of democracy. The will of the people is to be res-pected but not ultimate, there are certain limits beyond which the will of the people could be tyrannical and hence judiciary comes into play. Those limits are well described by Supreme Court in Keshavanda Bharti case, wherein the Apex court has specifically said that the basic nature of the constitution of India can’t be tampered with and any legislation tampering with that will be considered as unconstitutional.
Independence of judiciary is also part of the basic nature of Indian constitution.It is to be protected at every cost if democracy is to be kept alive, other wise as Plato has said, the next stage of democracy is tyranny. There are two types of judicial independence; institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing for any repercussions in their careers because of their decisions. The Apex Court had protected the institutional independence by throwing away the National Judicial Appointments Commission Act but the silence over perpetual attacks on decisional independence are very scathing. The worst part of this whole fiasco is that in response to the executive bullying and political stunts, judiciary has remained mostly silent. Supreme Court has no public relation wing and neither a marketing wing like these politicians to rebut the propaganda spread against them. Hence the passive propaganda of these politicians and subsequent silence from judiciary sometimes make an strong perception against judiciary among the masses.
To this I find a solution from Former Chief Justice of United Kingdom, Lord Tho-mas of Cwmgiedd, who came up with some very interesting steps to foster better relations between judiciary, executive and legislature. He had said that the in-formal relationships between judiciary, executive and parliament have been wea-kening for many decades. There are few MPs with legal experience and only one judge who was previously an MP. So the relationships between the branches of state have diverged significantly. He further said judges should be consulted on legislation in the same way the treasury are consulted on spending proposals. Although Judges do not advise on the merits of legislation, but should provide inputs on technical and procedural aspects of legislation.
While overstepping into each others domains by executive and judiciary maybe helpful for different political parties at different times, but such tussles between executive and judiciary are not good signs of a healthy democracy. But if judi-ciary and executive are found to be on same page, what could be more disastrous than that ? Imagine!
(The author is an advocate and a legal and political analyst)
feedbackexcelsior@gmail.com

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