Constitutional Mess: Executive And Judiciary Have Now Become Parallel Centres Of Power

India’s Constitution is pretty clear on the matter. It is the job of the executive to run the country, the legislature to make laws, and the judiciary to interpret the law and ensure that everybody follows them.

In terms of accountability, the executive is accountable to the legislature, and the legislature to the people. But the judiciary is largely unaccountable, though, in theory, recalcitrant judges can be probed and dismissed by the two houses of Parliament voting against them. Now, not only does the judiciary appoint itself, but it also makes the law. It can over-rule laws passed by overwhelming majorities in both houses of Parliament, as it did with the National Judicial Appointments Commission. More recently, it has also begun making the law and running the country indirectly by asking the law and order machinery to report to it directly.

Two instruments aid the judiciary in making itself a parallel power centre to the executive and the legislature. One is the instrument of the public interest litigation (PIL). The more the judiciary comes under critical scrutiny, the more it is inclined to use PILs to impose itself in matters that ought to be the terrain of the executive.

Take two examples from recent hearings in the Supreme Court.

In one case, where advocate Utsav Bains alleged that there was a conspiracy to frame Chief Justice of India (CJI) Ranjan Gogoi through a sexual harassment allegation, a three-judge bench directed the Central Bureau of Investigation and the Intelligence Bureau to work under retired Supreme Court judge A K Patnaik to unearth this “conspiracy”. Among other things, Bains claimed in an affidavit that he was offered Rs 1.5 crore by fixers and plotters to implicate the Chief Justice in the sexual harassment case.

Question: is it the job of the court to direct an intelligence outfit and a criminal investigation service to operate under its own nominee judge, when both these jobs are within the domain of the executive? In the past, the court has ordered special investigations and police probes whenever PILs were filed on some issue or the other. Now, the separation of executive and judicial powers is blurred.

Last week, an emotional CJI alleged that his accuser could be part of a larger conspiracy to defang the office of the CJI. He said: “There has to be a bigger, bigger force behind this. There are two offices - one of the Prime Minister and one of the CJI. They (people behind this controversy) want to deactivate the office of the CJI.”

This statement is suggestive of a new reality: that the higher judiciary sees itself as a parallel centre of power. The CJI now compares his powers to that of an elected PM, when that is not the intent of the Constitution.

Another PIL has been filed to get the courts into how banks manage their balance-sheets. This PIL asks the court to direct nationalised banks to not write off bad loans even in a technical sense, since this will mean more capital has to be pumped in, and which could impact the fiscal deficit.

One hopes the court steers clear of such PILs, but the point is this: PILs ought to be few and far between, but they are now being filed in torrents, and the court is not rejecting them out of hand. This is indicative of the court’s desire to get into governance through the backdoor.

In no other country would a court order the police or crime investigation agencies what to do, or entertain a petition to direct banks on what to do with bad loans.

On the other hand, the accountability of the judiciary is diminishing steadily. Even while the CJI was talking about his bank balance to suggest that probity was a judge’s only asset, fewer and fewer members of the bench are disclosing their assets.

According to data research by Sanjeev Nayyar, in 2016 (as on 13 May 2016), 21 of the then 25 Supreme Court judges had declared their assets on the court’s website. The following year, as on 14 October, this number was down to 14; and on 4 April 2019, this number was even lower at just seven out of 27 sitting judges. The judges who declared their assets include the current Chief Justice, Ranjan Gogoi, followed by his likely successor (S A Bobde), Bobde’s successor (N V Ramana), and Justices Arun Mishra, R Banumathi, A M Khanwilkar and Ashok Bhushan.

From an 84 per cent disclosure rate in 2016, it fell to 56 per cent in 2017 and to just 26 per cent in early April this year.

In short, even as the Supreme Court has arrogated to itself the right to directly impose itself in areas that are the domain of the executive or the legislature, it is becoming less and less accountable.

We now have two parallel governance structures, one with ultimate accountability to the people and another without clear accountability to anyone.