The executive delay in finalising a memorandum of procedure (MoP), and the almost legendary delay in finalising judicial appointments already approved by the judicial collegium, have once again sparked stories about a growing trust deficit between the supreme executive and the Supreme Court. It is not clear why the court deferred to the executive by asking that the MoP be prepared by the law ministry when an authoritative MoP could have been drawn up by the court itself. The Union of India (UOI) had the grace to accept the NJAC decision as the final constitutional word. Surely, the MoP may not transgress that decision. To attempt to do so would be to violate the elementary rule prescribing that what cannot be done directly may not be done indirectly.
To be sure, a national security check on the names finalised by the collegium is the prerogative of the UOI but this does not furnish any ground for reportedly adding new conditions regarding judicial elevations beyond the NJAC decision itself. The collegium that makes the final choices is best assisted by the national intelligence agencies. However, constitutional good faith requires the appointment process be reasonably expeditious and efficient. In case of elevation of high court chief justices and associate justices such an enquiry would not involve much time as would first-time elevations to the Supreme and high courts. In any case, a national security check cannot be an alibi for much delayed executive and judicial action. Nor can it be a cover for bringing back some aspects of the NJAC amendment and the Act.
The wider question posed is about the dimensions of mistrust between the supreme judiciary on the one hand and the executive and Parliament on the other. This mistrust has always marked Indian constitutional development. But untrustworthiness can be creative as well as destructive. The recurrence of indictments of the judiciary overreaching its powers implies a particular theory of democracy, namely one which entails active mistrust of judicial review powers and of the principle mandating limited governance. Neither the supreme executive nor Parliament, as is well known, have ungrudgingly accepted the growing powers of the Supreme Court to invigilate constitutional amendments and the power of judicial appointments. They have urged, intuitively and normatively, that judicial process and power must pursue representation-reinforcing pathways; or, in other words, popular democracy (where people choose their representatives for a term) comes first and must stay first. But we have failed to develop any workable theory between “democracy” and “distrust”.
Surely, as social psychologists and philosophers have taught us, trust entails risk — particularly of betrayal. Trust stands commonly defined as being vulnerable to others. Entrepreneurship implies trust in others and willingness to expose oneself to betrayal. Trust in expert systems is the essence of globalising behaviour; trust itself emerges as a super-commodity in the social market and defines the characteristics of goods and services in a global market. Trusting conduct also means holding others in good esteem, and an optimism that they are, or will be, competent in certain respects. Controversy surrounds the further requirements, particularly that trustworthiness entails a set of motives.
Does interpretation of a normative/aspirational document like the constitution encode a notion of trust? Can judicial interpretation be trusted to promote the basic structure or are parliament and the supreme executive better poised to do so? When is interpretation a betrayal of “democracy” and when is it a promise of democracy to come? Surely, if judicial constitutional leadership can betray the people, any tyrannical prime minister may do so, as seen during the Emergency. A conniving or complicit judiciary is also a constitutional disaster. But since the rise of social action litigation (miscalled PIL) the court has, in fact, become the co-governor of the nation: It has read the constitution as an open-ended text providing the judiciary with new powers to invent new rights, new structures for investigation and implementation, new jurisdictions, new ways of policing the norms and institutions of federalism, new modes of dealing with public natural resources and the environment, new modes of invigilating the exercise of public power as a social trust, new ways of innovating the basic structure, and new constitutional ways of devising policies, including the attack on systemic corruption.
In doing so, the court on the whole has said yes to the almighty prowess of executive and legislative governance but it has subjected it to a normatively huge caveat that while democracy is an extremely important essential feature of the constitution, yet it is one among the many (such as rights, equality, secularism, federalism, republicanism). It is necessary to develop a constitutional culture in which the basic structure of the constitution is respected and that structure requires judicial review powers which even a constitutional amendment may not curb. Consistent with this, the court has recognised truly vast powers of governance in the executive/legislature combine.
The real social meaning of the Judges’ case and the NJAC decision is that the judiciary may not be able to perform constitutional wonders if it also does not enjoy the constitutional powers of self-composition to appoint its own justices. Likewise, the real social meaning of the executive wrangle over the MoP is the desire of the supreme executive to appoint justices. Is this tension or contradiction creative or destructive?
Much depends on how the present crisis is handled; it cannot be dealt with by the constitutional texts printed by the government press. Rather, it can be managed only by reference to a wider interpretation of changing economic and social contexts in which adjudicatory interpretation takes place. What is important to the future of democracy in India is a wise management of mistrust in governance — whether executive or adjudicative.
There is an African saying that “when two elephants fight, it is the grass which suffers”. The people of India, in whose name the constitution is written, are, however, not “grass”. It is time that the governing ensemble stops colliding and pays more heed to the seven-decade-old constitutional promises made for the worst-off Indians.
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