In today's day and  age , it is inconceivable that a  prime minister could say, “Within limits, no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of the Parliament representing the will of entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way.”  But this is exactly what  Jawaharlal Nehru said in the Constituent assembly on September 10, 1949, while debating the fundamental right of property.

Prime Minister Narendra Modi struck a somewhat similar note while addressing a conference of chief ministers and senior judges of India on the weekend. He  is reported to have  said that the judiciary needs to have an internal mechanism for self-assessment and reflect on whether “five-star activists” and a perception of reality are driving  court verdicts. He also said that while it "is never too difficult to deliver justice within the boundaries of the law and is very difficult to find the truth between perception and reality".

Are these mere rhetorical flourishes, or is there an implicit drawing of a lakshman rekha of governmental tolerance, beyond which the judiciary is being exhorted not to tread? After all every strong leader, leading a country away from the debris of the past into his particular vision of the future, hates to be blocked by a set of judges looking at precedents.

FDR's threat

In the 1930s,  President Franklin Roosevelt saw legislative components of  his “New Deal” being repeatedly blocked by the US Supreme Court, particularly a group of judges termed  “the four horsemen of the apocalypse”. The court’s decisions so infuriated him that he threatened to expand its strength from nine judges to 15, packing  his men into the expanded slots to overturn the conservative majority. After this warning, when  Justice Owen Roberts switched from the conservative block to the progressive wing of the court, his turnaround  was termed “the switch in time that saved the nine”. With the court having been tamed, Roosevelt did not follow up on his threat and to this day, the US Supreme Court has only nine judges.

In India, despite Pandit Nehru’s limited view of judicial power, it soon became apparent that the Supreme Court of his day did not consist of judicial rubber stamps. When key legislation like Zamindari abolition was struck down for violating property rights, Nehru’s government had to come up with constitutional amendments. Indira Gandhi’s attempts to nationalise banks and abolish privy purses also fell afoul of the Supreme Court. Her law minister Mohan Kumaramangalam and his leftist brigade repeatedly called for a committed judiciary. Some of the appointments made then were of judges of a distinctive leftist orientation. Despite all her judicial experiments, it was a judicial verdict from the Allahabad High Court that began the process of unseating her. India’s descent into the Emergency, its suspension of basic human rights and retrospective validation of her election dispute were all dutifully assented to by an acquiescent court. It was partly in reaction to this low phase that upon the restoration of democracy, the Supreme Court embarked upon a voyage of public interest litigation, from which it has never turned back.

Seen in this context, Prime Minister Modi may appear yet another strong ruler, thrusting himself as a bulwark against perceived judicial overreach. However he has a history of his own that lends colour to the fear that his warnings arise not from a sense of solicitude but from a desire to impose his will. His rule in Gujarat began against the backdrop of the movement against the Narmada dam and public interest litigations launched by the formidable Medha Patkar of the Narmada Bachao Andolan. Later, it was the activism of Teesta Setalvad and the Citizens for Justice that lead to court-monitored investigations and prosecutions of the Gujarat riots of 2002. When no Lokayukta was appointed for a number of years, it was the Gujarat High Court in 2011 that mandated an appointment.

While Modi the politician has fought, survived and all but won his legal battles, the road has been arduous. His path to prime ministership has been paved with milestones of many legal battles; even now, the war clouds have not entirely dispersed. For such an individual, an activist judiciary would not necessarily be a welcome development.

Manmohan's reputation dented

Prime Minister Modi may also remember that his predecessor’s  halo of honesty was destroyed largely  through court action in public interest litigations. Court proceedings in  the 2G and coal scam  cases and constant media attention, effected a policy paralysis that ran through the last three years of Manmohan Singh's administration. A new action-oriented government, determined to infuse confidence in investors and assure them that they will not be hit by litigation delays, may also welcome a tame judiciary.

A ruler is often told that he embodies the law, that he makes the law, but he often  feels hemmed in by the constraints of ruling within  law. From Henry II, shouting for Becket’s head  ‒ “will no man rid me of this turbulent priest” ‒  to Ramshastri Prabhun holding Peshwa Raghunathrao guilty of the murder of his nephew, Peshwa Narayanrao, history is replete with instances of the ruler being undone by the rule  of law. Not for nothing did the British judge Lord Denning deliver the famous admonishment, “Be you ever so high, the law is above you."

The Prime Minister’s extempore speech and some of his remarks may evoke some legitimate concerns. He may do well to  reassure the nation that his expressions of concern were just that and no more. India needs a strong and efficient executive as much as it needs an independent judiciary that can work uninfluenced by the noise and clamour of its democracy.