Committed Judiciary refers to the judiciary which is committed to uphold the policies of the government in power by interpreting the laws and the Constitution in a way palatable to the Government in power.
Why it is in news now?
- The Judgment of the Meghalaya High Court by Justice SR Sen has triggered the controversy of committed judiciary. The remarks of the Justice Sen while disposing the petition filed by A Rana, who was denied domicile certificate by the state has raised eyebrows.
- Justice Sen has said that “Pakistan declared itself as an Islamic country and India since was divided on the basis of religion should have also declared as a Hindu country but it remained as a secular country”. He went on to say that “our beloved Prime Minister has sought to legislate to grant automatic citizenship to (non-Muslim) religious minorities who have come from Pakistan, Bangladesh and Afghanistan. Our political leaders in 1947 were too much in a hurry to get the independence. Thus, creating all the problems of today, and that nobody should try to make India as another Islamic country”.
- Justice Sen also directed the Assistant Solicitor-General to hand over a copy of his judgment to the Hon’ble Prime Minister, Hon’ble Home Minister, and Hon’ble Law Minister.
This was not an aberration. It was latest in a series of instances where judges have inserted themselves into fraught political controversies, and have deployed the prestige of judicial office to lend weight to one side of the controversy. This is an alarming trend.
Committed Judiciary has a long History
- Since its inception the successive governments in India have desired and attempted to confine the role of judges. The first Prime Minister Jawaharlal Nehru had once remarked “If we go wrong here and there, it can be pointed out, but in the ultimate analysis, no judiciary can stand in judgment over the sovereign will of the entire community. Judges can correct the wrong here and there; they cannot arrogate to themselves the position of super-house of a parliament.”
- The desire towards the committed judiciary increased during the tenure of Mrs Indira Gandhi as PM. The verdict by the Allahabad High Court which set aside her election as MP and few other judgments (Madhav Rao Scindia vs Union of India (the Privy Purse Case) and R C Cooper vs Union) where her political decisions were questioned by the courts in the name of the Constitution and justice did not go well with the government.
- The senior most judges were superseded and Justice A N Ray was appointed Chief Justice of India.
- Again Justice M H Beg superseded senior most judge Justice H R Khanna, after he gave a powerful dissent judgment in the case of ADM Jabalpur vs Shivakant Shukla related to the proclamation of Emergency by Indira Gandhi.
- The judges of the high court who did not toe government’s line were transferred and attempts were made to install committed judges in the Supreme Court.
- The committed judges did their best to protect the interest of the government and, when they could not, they penned down dissenting opinions to show their loyalty to Mrs Gandhi.
- Mrs Gandhi even sought to vindicate her claim for ‘commitment’ by referring to US President Roosevelt having appointed judges who were committed to his programmes.
Why Judicial Independence is of paramount importance?
- The concept of judicial independence is not confined to independence from the government. Judicial Independence is a broader term which requires judges to perform their constitutional role independent of personal biases, political and moral beliefs, and partisan ideologies.
- Judicial independence requires judges to uphold the supremacy of the constitution, while being uninfluenced by politics. Law and adjudication must remain autonomous from partisan.
- If the judiciary is committed the ‘independence of the judiciary’ and the ‘system of checks and balances,’ which are essential features of the Constitution, will be in peril and constitutional democracy will be reduced to the tyranny of the majority.
- If the judiciary becomes committed to the policies of the government, it will be difficult for the people at large to check the party in power from acting according to its own whims and fancies.
- The committed judiciary will also destroy the federal fabric which is internal part of basic structure of the Constitution. There would be a mutual distrust among the states of the Union of India. There are many disputes between the states and it has become a natural tendency to not trust the central government because they might sense that the ruling party at the Centre favours states where, too, it is in power.
- But the states have faith in the judiciary which is equipped with original jurisdiction to solve these disputes and preserve the federal identity of the Constitution. The idea of a committed judiciary will spoil this federal trust and confidence.
India needs a thriving legal culture which uncompromisingly calls out political posturing of the kind we saw like the verdict of the Justcie Sen of Meghalaya High Court. This legal culture cannot pick and choose, while criticising regressive orders like Justice Sen’s, it must also criticise judgments that equally cross the line, but nonetheless seem to have achieved a “right outcome”. A principled consistency requires that judges must always give reasons for their judgment. This can halt the transformation of the constitutional court into an executive court.