Poser To CJI: And Who Will Step In When The Judiciary Fails To Do Its Job?

Chief Justice of India TS Thakur has said that the judiciary intervenes only when the executive fails. He said: “The extent of judicial interference in governmental issues depends on how effectively and efficiently the government does its job. Which court would want to intervene if the government works efficiently and sincerely? The courts only fulfil their constitutional duty and need would not arise if governments do their job,” The Indian Express quotes him as saying.

There cannot be a more self-serving argument for a judiciary that has been meddling repeatedly in executive or legislative areas while remaining largely unaccountable itself. The CJI’s statement should, therefore, be parsed for inconsistencies so that a mirror can be held to a rampant judiciary.

First, what is the judiciary’s yardstick or metric to decide the executive has failed? Does it know when it should intervene in an air pollution case (as it did in Delhi) and when not to? Or whether it should direct a black money probe on its own or allow the government and investigative agencies to do their jobs?

The answer is probably that the judiciary’s interventions are often arbitrary, and not decided by objective criteria.

Second, the CJI went on to say that “the extent of judicial interference in governmental issues depends on how effectively and efficiently the government does its job”. So the argument has moved from government failure to more debatable areas like “efficiency”. How is efficiency to be measured? Will the Supreme Court decide whether a government is efficient or not or leave it to the people to judge, as our constitution’s writers intended? Implied in this sentence is an assumption that the judiciary knows when effectiveness and efficiency have been impaired. When judges are essentially trained in law, and when pending cases in the judiciary run into crores and cases get decided over decades, can one presume the judiciary knows a thing or two about effectiveness and efficiency? When this strength is not visible in judicial functioning, how has the CJI decided - rather prematurely - that the judiciary can do better than an elected government and its army of advisors and experts?

Third, the CJI asked: “Which court would want to intervene if the government works efficiently and sincerely?” He only has to look at recent judgments of our superior courts to find the answer. Courts have got themselves involved in questions like where IPL matches should be held, how bank defaulters should be handled, what ads elected governments can release, and even how a private body like the Board of Control for Cricket in India should be run. And these are only a few examples. Where have the courts shown restraint in where and when they choose to interfere in areas beyond pure interpretation of the law?

Fourth, CJI Thakur said “the courts only fulfil their constitutional duty and need (for intervention) would not arise if the governments do their job.” Fine. Let’s assume the courts have been doing only that. But can the chief Justice answer one simple question: who will intervene when the higher judiciary itself fails to do its job? Or will the judiciary pronounce judgments on every other arm of democracy and then remain immune to criticism itself? The judiciary will decide how it will do its job, and also how others do their jobs.

How is the judiciary fulfilling its constitutional duty when it sits in judgment on every other pillar of a constitutional democracy while holding itself unaccountable to anybody?