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Why Modi government must be seen to support judicial independence

The pro-Narendra Modi campaign is run on the plank of “development”, almost completely oblivious to the global debate around it. The pro-Narendra Modi campaign is run on the plank of “development”, almost completely oblivious to the global debate around it.

The ABM (anyone but Modi) brigade is continuing its crusade against the new prime minister, mainly for the killings of Gujarat 2002, for alleged authoritarianism in governance and the “polarisation” of electoral politics. The pro-Narendra Modi campaign is run on the plank of “development”, almost completely oblivious to the global debate around it. While the campaign points out that the new government won 31.6 per cent of the votes, which translates into 282 parliamentary seats and gives the NDA coalition a comfortable majority in the Lok Sabha, the ABM brigade points out that this vote share does not amount to a national majority. The campaign promises “inclusive growth”; the brigade points to the “exclusion” of Muslim MPs in the ruling party. Both supporters and opponents ignore Italian philosopher Giorgio Agamben’s conclusion that inclusion can only be strategic “exclusive inclusion”.

This article is focused on the fact that the government inherits from the UPA 60 bills in the Rajya Sabha, 68 having lapsed in the Lok Sabha. Completing the legislative business of the last Parliament, much of which had received the BJP’s assent at the time, will define legislative governance now. Presently, how the government translates its manifesto promises into regulation will also become crucial.

In the Rajya Sabha, the BJP has just 42 of 245 seats. Elections in some states in 2015 may change the situation somewhat for the NDA, but it will have to find allies to deliver its legislative agenda. The device of joint sessions may not help with the routine business of Parliament. Only three joint sessions have been called: in 1961, 1978 and, most recently, in 2002 ,to pass an anti-terrorism legislation that was later repealed. Would the president summon these as a matter of course? Moreover, a joint session cannot be called on constitutional amendments, impeachments and emergencies.

Much depends on floor management. Much also depends on the style of the prime minister and his cabinet: he may, as his election speeches suggest, use his powers wisely and well, or he may be advised to use only his super-majority powers. Only time can tell. The issue lies beyond the magical “Modi moment” (as Pratap Bhanu Mehta puts it). That moment was about the acquisition of power. What now matters is its wise use.

The justices do not watch election results, or so constitutional theory tells us. Constitutional history tells a different story. Citizen-justices watch election results carefully, some even avidly. The point is, except for the rare party-political judicial aspirant, they hardly decide the future of adjudicatory policy in accordance with election results.

Yet, justices do not just decide the cases and controversies that come before them; they also decide on how they should decide. For example, the “tyranny of legislative majorities” has been seen by most appellate justices as a threat to fundamental rights. Justice M. Hidayatullah immortalised this view in 1967, when he wondered aloud, even as he sustained the 17th amendment, whether fundamental rights were a “plaything” of the legislative majority. Justice K. Subba Rao fought what he thought was “statism”. Judicial decisions since the Kesavananda Bharati case have increasingly invalidated executive and legislative actions impairing fundamental rights as judicially interpreted. Now, even constitutional amendments have to be consistent with the basic structure and the essential features of the Constitution.

Among the proposed constitutional amendments are changes to the judicial review process and powers.
BJP leader Arun Jaitley had argued vigorously in the Rajya Sabha that a constitutional amendment would be a necessary safeguard for the judicial accountability bill. Lawyer Ram Jethmalani, however, insisted that any regulation of judicial conduct would compromise the integrity of the judicial review. Undoubtedly, when this measure is challenged before the Supreme Court, the critics in the judiciary and the bar will oppose the collegium. But no one welcomes executive appointments of justices and no Indian would like a Union law minister boasting that he had judges in his pockets.

How is the present law minister, himself a preeminent SC lawyer, to advise the prime minister? Should the bill be passed (though not as a constitutional amendment), daring the SC to invalidate it? Or should the bill be amended to include the five seniormost justices of the SC in the appointments commission, which would partially address the charge that it violates the basic structure of the Constitution? Where will this leave the high court collegiums? How will the judicial commission avoid the interpretation that constitutional consultation means concurrence of the judiciary? Perhaps, a non-adversarial mode would be best. The fresh advisory opinion of the entire SC should be sought on the best constitutional method for judicial appointments. The opinion should also address the vexed problem of the chief justice of India being appointed for an irritatingly short tenure, ranging from 15 days to a few weeks.

The SC should continue to invite strict constitutional scrutiny on laws and on executive action, old and new, for the indictment of fundamental rights violations. In the SC’s curative petition against Section 377 of the IPC, the two-judge bench’s decision to leave the question of LGBT rights to Parliament should be reversed. Apart from strong independent arguments supporting this change, a reversal is now further mandated by the three-judge bench decision recognising the constitutional rights of the third gender. It is also not too late to attend to the needs of the Bhopal catastrophe victims.

Judicial independence should be regarded as an aspect of good governance. The BJP should take into account the possibility that the SC may consider Article 370 an emanation of the basic principles of federalism and secularism. And despite the brave party talk of a judicial “clean chit”, Modi needs to be seen as supporting the independence of the judiciary.

One of Modi’s predecessors had once asked me whether judges should govern. My response was that they should not if there was governance. Despite setbacks, the court’s vast and growing social action jurisdiction continues to be founded on the fact that the SC is (in Justice Goswami’s words) the “last resort of the oppressed and the bewildered”. Parliaments and executives may deliver change, but rarely do they dispense justice. That remains the crucial task of the courts. Judicial activism flourishes not because governments are weak but because they are lawless. The path of good governance lies not merely in making governance more effective but in rendering it more just.

The author is an emeritus professor of law at the University of Warwick and Delhi University
express@expressindia.com

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