Tensions between the executive and judiciary are to be expected and welcomed in a democracy where those who exercise power, as the famous eighteenth-century French writer Montesquieu said, can be expected to abuse it, so power must always be used to restrain and temper power. The relationship between the executive and the judiciary has since those initial years of the republic, till recently, been one of an uneasy compact, in which the two kept each other at arm’s length, but without giving each other too much room.
That’s what is stipulated by the democratic principle that nobody is above the law, that authorities must constantly be scrutinised and tested, so that in the age of monitory democracy, when democracy has come to mean much more than free and fair elections, the public monitoring and restraint of arbitrary exercises of power by bodies such as independent courts is vital for the freedom, equality, and well- being of citizens.
In 1973, along these lines, in the famous Kesavananda Bharati case, also known as the Fundamental Rights Case, the Supreme Court asserted the right of the courts to strike down constitutional amendments that violated what it called the “Basic Structure”, or the fundamental architecture of the Constitution. In subsequent years, it delivered significant rulings on matters that it held pivotal to this “Basic Structure”, such as secularism and the judiciary’s independence in appointing judges.
The executive hit back periodically by blocking the career path of judges who issued inconvenient rulings. The intended separation and mutual contestation of powers preserving the architecture of India’s brand of monitory democracy was well served and honoured. Except for times when the judiciary opted to fall tamely in line, rather than push back. These were the dark and foreboding moments that spelled long-term danger for Indian democracy.
The bleakest of them all was the famous “ADM Jabalpur” case in 1976, when a five-member Supreme Court bench ruled that personal liberties could be suspended during the Emergency that Indira Gandhi had imposed. In a majority ruling of four to one, the judges upheld the executive’s prerogative to detain people and ruled that the right to life and the remedy of moving a habeas corpus (“to produce the body”) petition for release against illegal detention didn’t hold during a period of emergency rule.
A habeas corpus petition, a vital instrument against state coercion, allows judges to order the authorities to bring the accused before their courts to verify if they had been detained in accordance with the law. During the twenty-one-month Emergency, the ruling that liberty was not an absolute freedom, that even the right to life could be suspended in extraordinary circumstances, enabled indiscriminate arrests of Indira Gandhi’s political opponents.
The lone Supreme Court judge on the five-member bench who dissented against the four-to-one majority ruling was denied elevation to the position of chief justice. Sixteen judges from nine High Courts who had earlier upheld personal liberties were also sidelined.
Soon after Indira Gandhi lost the election in 1977, the opposition alliance that rose to office passed the 44th constitutional amendment. It reversed the despotism of the previous habeas corpus ruling by upholding that the right to life could not be suspended, not even during an Emergency. But the ghost of ADM Jabalpur was to live on, until late 2017, when a nine-judge Constitution bench finally overturned the “seriously flawed” ruling. ADM Jabalpur, it said, was an “aberration” that needed to be “buried ten fathom deep with no chance of resurrection”.
Within two years, however, the old ghosts of the Emergency rule returned. Habeas corpus stirred back to life from “ten fathom deep”, in historian and constitutional lawyer AG Noorani’s words, as “habeas carcass”. In August 2019, with the stroke of a pen, [Narendra] Modi’s government revoked the autonomous status of the restive state of Jammu and Kashmir.
The federal government stripped it of its statehood and split it into two federally administered units, without the consent of its elected representatives. It imposed an information blockade by shutting down telephony and the Internet, and put thousands of Kashmiris, including all its political leaders, in detention.
The draconian Public Safety Act of 1978 allowing preventive detention – modelled after the colonial- era Rowlatt Act that once galvanised protests led by Mahatma Gandhi – was back with a vengeance in independent India, used indiscriminately to imprison even young boys.
Under determined government pressure, the Supreme Court simply chose to look away. In a political system already showing clear signs of a slide towards despotism, the court’s inaction allowed the government to get away with a move already made by despots in Hungary, Poland, Turkey, Russia, and elsewhere: to tame the judiciary to the point where executive power guts constitutional precepts and rulings to ensure that the courts are the playthings of the reigning political powers.
To the multiple habeas corpus petitions challenging preventive detentions, the Supreme Court issued “permission” to petitioners to travel to Kashmir and meet the detainees in question, even though there have never been any legal restrictions on internal travel in India.
The court even placed conditions on petitioners, instructing them to avoid any political activity while in Kashmir. The Supreme Court thus not only abdicated its duty to protect fundamental rights by asking the executive for justification of its actions in Kashmir. By seeking to enforce some of the clampdown regulations, it became an arm of the executive.
If institutional checks and balances are intended to keep the executive and the judiciary on their toes, and to prevent arbitrary exercises of power, tensions between the two should serve a democracy in good stead. With Modi’s rise to power in 2014, tension turned into open war between the two wings.
Within four years, the Supreme Court found itself in uncharted territory, when four of its most senior judges called a press conference and alleged government meddling with judgments. The chief justice, they felt, was not working independently and was using his privilege as the “master of the roster” to assign important cases to specific, “reliable” judges in a way that predetermined their outcome to the satisfaction of the government.
“The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country,” Justice Jasti Chelameswar, the second-most senior judge after the chief justice, told reporters. Two months later, he shocked the legal community with a letter to the chief justice, asking him to convene a full court to take up the issue of executive interference in the judiciary, warning “bonhomie between the judiciary and the government in any State sounds the death knell to democracy”.
The chief justice was a member of a team of four senior judges who comprise the all-powerful collegium that takes the most important decisions related to India’s higher courts, such as promotion, appointment, and the transfer of judges. The federal government is required to act on the recommendation of the collegium.
The unusual protest by the country’s most senior judges marked the apogee of a simmering turf war with the government, which had been trying to end the collegium’s monopoly in judge-related matters by instituting a panel called the National Judicial Appointments Commission (NJAC) designed to give the executive a say in judges’ transfers and appointments.
The NJAC Act was the first piece of legislation that Modi’s government steered through the Parliament after he took office in 2014. But the Supreme Court upheld the collegium system and struck down the NJAC Act, keeping the power of promotions and appointments with the judges, and maintaining the separation of powers between the judiciary and the executive.
One of Modi’s senior ministers called the verdict “the tyranny of the unelected”, and the government retaliated by sitting on collegium recommendations on judges even as vacancies piled up, using its veto power, not unlike some of its predecessors in similar battles of nerves with the high priests of justice.
A chief justice breaking down in public was a sign that their lordships weren’t winning. By the end of his tenure in 2016, the number of vacant posts for High Court judges had risen to nearly 500, with the government declining most of the recommendations by the collegium. His successors might well have concluded that for the sake of peace and quiet it would make more sense to abide by the government’s wishes.
Courts are dependent on governments both for the implementation of their orders and the resources needed for their sustenance. Especially when the courts are losing legitimacy in the eyes of citizens, governments can bring the judiciary into line using blackmail, withdrawals of favours, and threats of funding cuts. Balancing legal principles with the government’s sensitivities as a way of judicial self-preservation is thus built into the system.
Nobody probably understood this better than Ranjan Gogoi, one of the four protesting judges at the peak of the 2018 tussle between the executive and the judiciary. Gogoi was soon to take over as the next chief justice. By the time he finished his stint at the top of India’s judicial pyramid two years later, the collegium had become far more collegial towards the government’s preferences for judges in its recommendations for transfer and appointments.
The executive-judiciary status quo was radically transformed. It went from one of guarded cordiality interspersed with periodic friction into a relationship of active collaboration – to the point that the two sets of institutions sometimes looked like conjoined twins, as in the established despotisms of governments led by Viktor Orbán and Vladimir Putin.
Excerpted with permission from To Kill a Democracy: India’s Passage to Despotism, Debasish Roy Chowdhury and John Keane, MacMillan.