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Modi govt and SC are locked in a battle where each wants to set the boundary for the other

The standoff between SC and Modi govt over the selection process of election commissioners comes after Kiren Rijiju's remark that only in India do the judges appoint judges.

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The recently concluded hearing in the Supreme Court over a batch of petitions to evolve an independent and neutral mechanism for the appointment of an Election Commission saw a high-pitch exchange between the judges and senior counsel representing the Narendra Modi government.

A bench of five judges led by Justice K.M. Joseph was seized of the pleas that demanded a selection procedure to appoint the senior members of the poll panel. A legislative vacuum to streamline these appointments prompted the petitioners to approach the top court in 2015. However, the hearing began only last week.

As the proceedings progressed, the courtroom exchange turned into a tussle on the boundaries of the judiciary and the executive.

The central government came into the Supreme Court’s firing line for neither framing a law that defines the process of appointment of election commissioners nor laying down the eligibility criteria for their appointment. The top court spoke out on the need to “insulate” the Chief Election Commissioner’s office against political pressures, suggested the inclusion of the Chief Justice of India in the selection panel and questioned the short tenures of the ECs/CEC. It even summoned the records of former bureaucrat Ajay Goel’s recent appointment as one of the two election commissioners to “understand the procedure followed”.

In response, the Modi government pushed back strongly against the court’s inclination to devise any mechanism to appoint ECs/CEC. It called the court’s suggestion to seek the judiciary’s help “fallacious” and “constitutionally impermissible.”

This recent skirmish is yet another instance of an often-witnessed confrontation between the two pillars of democracy over each other’s supremacy.

Earlier this month, Union law minister Kiren Rijiju, speaking at an event in Mumbai, said that India was the only country where judges appoint judges, and called the collegium system “opaque”.

This is why the fresh stand-off between the judiciary and executive is ThePrint’s Newsmaker of the Week.

Also read: Brain behind Azadi ka Amrit Mahotsav — who is Arun Goel, new EC caught in SC-Modi govt tussle

Judiciary’s independence, tussle with executive

During one of the hearings, Solicitor General Tushar Mehta, counsel for the Modi government, urged the Bench “not to traverse through a path that may disturb the constitutional scheme of separation of power”.

Though the term ‘separation of power’ is not explicitly mentioned in the Constitution, the doctrine has evolved through judicial pronouncements, in support of various Articles of the Constitution, and refers to the model of governance where the executive, legislative and judicial powers are not concentrated in one body.

As an independent body, the judiciary is bestowed with the power that allows it to restrain the perceived arbitrary functioning of the executive. Over the years, the judiciary gave an expansive interpretation of fundamental rights, ushering in an era of judicial activism, leading to frequent face-offs with the executive.

The seeds of the conflict lie in the 1967 I.C. Golaknath judgment, where, it is said, the Supreme Court left no space for Parliament to modify any fundamental rights.

To nullify this, the government brought the twenty-fourth amendment. On a challenge, the Supreme Court upheld the amendment as valid, but “imposed restrictions” on Parliament’s power to amend the Constitution.

Known as the Kesavananda Bharati ruling, the verdict held that Parliament cannot alter the “basic structure” doctrine. The Indira Gandhi government resisted and appointed Justice A.N. Ray as the CJI, superseding three senior-most judges of the Supreme Court.

The friction further increased when the Allahabad High Court, in 1975, set aside Gandhi’s election from the Rae Bareli constituency in Uttar Pradesh four years ago, which was followed by an Emergency. Later, two judgments – Maneka Gandhi and SP Gupta – widened the scope of judicial review, giving discretion to courts to intervene in case the executive encroaches upon the fundamental rights of citizens.

The SP Gupta case heralded an era of PILs, through which courts expanded substantive rights to cover implicit rights such as the right to live with human dignity, livelihood and a healthy environment, inviting upon itself the charge of judicial activism. 

Judicial pronouncements that gave primacy to the collegium on the appointment of judges deepened the confrontation.

In 2015, the Modi government introduced a bill – The National Judicial Appointments Commission (NJAC) – to replace the collegium system, only for it to be quashed by the Supreme Court. The NJAC sought to give the executive a say in judicial appointments, which the top court said infringed upon judicial independence.

In recent times, the BJP-led government at the Centre has strongly resisted the implementation of the Supreme Court verdict related to the appointment of members in tribunals that are specialised quasi-judicial bodies. Last year, in September, the government introduced the Tribunals Reforms Act, which contained the same provisions that the top court had previously struck down. Here, the government has maintained its right to control the condition of services of tribunal members.

Also read: A runaway judiciary is Modi govt’s biggest frustration

Govt pushing back at judicial ‘intervention’

After much grilling from the bench, in the Election Commission case, Mehta retorted with criticism of the collegium system. “Independence of the executive is as sacrosanct as the independence of the judiciary, the government retorted, while referring to the perceived opaque collegium system for judicial appointments,” he told the Bench.

Both Mehta and law minister Rijiju’s remarks attack the judiciary’s penchant to ‘encroach’ into the jurisdiction of the other pillars, while at the same time insulating itself from any external intervention. This is a reflection of the culture of distrust that the judiciary has developed over the years for the other arms of the government. Supreme Court judges have time and again echoed the famous words of US judge, Justice Robert Jackson, in Brown vs Allen (1953) — “We are not final because we are infallible, we are infallible only because we are final” — to justify their own infallibility. Yet, the judiciary has consistently refused to extend this scope for error and self correction to other institutions.

The Supreme Court’s “worry” over preserving the Election Commission of India’s autonomy is a valid concern, particularly at a time when some of the poll panel’s decisions have come under scrutiny and been criticised as lacking apolitical balance.

But without any cause of action, should the judiciary impose its decision on the government in an area that is in the exclusive domain of Parliament?

Moreover, the suggestion to create a selection panel with CJI as its member is equally flawed, because it is clearly in violation of the doctrine of separation of power and could give rise to conflicting situations.

The CJI is on the committee that appoints the CBI director and, yet, questions about the investigating agency’s neutrality are often raised. The CJI became part of this selection process after the Lokpal Act kicked in.

Former CJI J.S. Verma had strongly opposed taking on board the CJI for CBI director’s appointment, saying it could lead to problems because cases arising out of the agency’s probe always land in the top court. This was proven when the controversy broke out at the time of senior IPS officer Alok Verma’s removal from the CBI director’s post.

Verma, who was chosen by a panel led by Prime Minister Narendra Modi, had challenged the government’s decision to send him on leave. Then-CJI Justice Ranjan Gogoi heard the matter but recused from being part of the panel meeting that decided to sack Verma.

The Election Commission case has once again highlighted the need for independent institutions to introspect. While institutional interaction and deliberations are necessary, it is time for the institutions to come up with corrective measures themselves.

Views are personal.

(Edited by Prashant)

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