The confrontation that's brewing between executive and judiciary is partly because in the last 25 years the judiciary encroached onto executive space, aided by weak coalition governments who failed to assert themselves

A confrontation is brewing between the executive and the judiciary with the installation of a majority-backed Narendra Modi government. It started with the government's decision to question the appointment of Gopal Subramanium as Supreme Court judge; the tensions were seemingly exacerbated by quick parliamentary approval for two National Judicial Appointments Commission (NJAC) Bills, including one that gives the NJAC constitutional status.

One thing needs to be stated upfront. While the immediate triggers relate to the government’s actions, the confrontation was anyway building up for some time due to three other factors: the steady encroachment on legislative space by the judiciary (2G judgment on auctions, mining bans, setting up of SIT on black money, etc), the subversion of the original constitutional mandate on judicial appointments by the Supreme Court during an era of weak governments, and rising public concerns about corruption in the judiciary.

The reason why matters have come to a head now (and not earlier) is clearly the arrival of a strong government which is not willing to let the courts walk over its jurisdiction. With the NDA government giving its nod for the NJAC constitutional amendment bill to be sent to the states for ratification (15 states have to pass it before it becomes law), the Supreme Court will be hearing two petitions challenging the NJAC bills. With other matters involving government also washing up in the Supreme Court - including the constitution of the Lokpal that needs a leader of the opposition (LoP) to join the selection panel when there is no LoP possible now, given the Congress party's low Lok Sabha numbers - tensions are bound to escalate.

Some tension between executive and judiciary is inevitable and even good because their jurisdictions are not watertight. While parliament has the unfettered right to pass laws, the courts have the right to check if these laws are in tune with the basic structure of the constitution. This creative tension keeps both the executive and the judiciary on guard - and mutually accountable. But if this tension degenerates into open war and ego tussles, it can be ruinous for the country and governance. This is what both government and judiciary must seek to avoid.

Right now, though, it is important for the judiciary to realise that it has encroached too must into executive/legislative turf, and must seek to withdraw gracefully.

Contrary to general assumptions, the current tensions between executive and judiciary have their origins not in the specific acts of the Modi government, but in the formation of relatively weak coalition governments for the bulk of the last 25 years. Starting with the VP Singh government in 1989, the central government has been politically weak most of the time. The only two periods of relative stability were during the Narasimha Rao and Atal Behari Vajpayee governments. The former was solidified by external financial bankruptcy, which muted the opposition, and the latter by the post-Kargil verdict that gave the NDA a clear mandate. But even Rao and Vajpayee did not run majority governments; the remaining coalition governments were politically even weaker.

Political power vacuums are an open invitation to other creatures of the constitution to extend their reach, and this what the courts did when executive authority declined – especially during the 1991-99 phase, and during the 2009-14 one, when the executive was weakened by the lack of a clear electoral mandate, sometimes worsened by bad political arrangements (Prime Ministers with no support, or nominated PM’s with no political authority).

For example, in the 1990s the Supreme Court completely trampled over the constitutional provision that the government will appoint Supreme Court judges after consulting the judiciary. It made the collegium system supreme in two judgments delivered in 1992 and 1998. In both years, political authority was weak. In contrast, in 1981, a year after Indira Gandhi stomped back to power with a hefty majority, the Supreme Court had, in fact, upheld the old constitutional scheme of government appointing judges after consulting the judiciary.

In 2011, with the moral authority of the UPA-2 eroded by scams and its political authority residing outside the government in Sonia Gandhi, the Supreme Court stepped into the power breach. In the 2G case verdict, it not only cancelled the telecom licences and spectrum awarded by A Raja through a dubious process, but also laid down policy on how scarce natural resources should be sold – only by auctions. Pricing of natural resources is in the area of policy, and outside the scope of the judiciary – unless the process itself is vitiated by unfairness or opaqueness.

Luckily, the UPA government gathered enough spine to force the court to re-examine the issue again through a presidential reference under article 143 (1), and the court backed off. It affirmed that policy is indeed the government’s domain. Only its unfair implementation would be looked into by courts. The presidential reference was answered in no uncertain terms by a bench headed by then CJI SH Kapadia thus: “There is no constitutional imperative in the matter of economic policies. Article 14 does not pre-define any economic policy as a constitutional mandate.” (Read the full Supreme Court view on the presidential reference here.)

The Supreme Court used an earlier judgment to stay out of policy formulation. That judgment held: ““We do not think that it is the function of this court or of any court to sit in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide.”

The point is clear: the courts have backed off whenever governments have asserted their right to legislate and decide policy. They encroached on executive and/or legislative territory whenever governments were too weak to fight back.

This brings us to another issue – why courts may now have to back off from a confrontation over the NJAC bills.

Just as policy is not the court’s domain, neither is judicial appointment and transfer. Under article 124, the CJI and senior judges have a right to be consulted on such appointments, but they do not have the last word on them. The NJAC more than respects this principle of consultation and, in fact, gives any two members of the proposed six-member NJAC (three of whom will be judges) the right to reject a candidate. So the judiciary has even more powers under NJAC than what was given by the constitution to them. In any case, the collegium system was past its sell-by date.

The main objection raised to the replacement of the collegium system by NJAC is one of judicial independence. How will judges be independent if they are appointed by the NJAC, where politicians have a (minority) role to play?

There are several layers to the answer.

First, independence is not about the process of appointment, but whether the judges are upright and honest. The collegium system was far from foolproof in the appointment of honest judges – as the allegations of corruption in judiciary highlighted by former judge Markandey Katju show.

Second, independence can be subverted in many ways. The UPA did not take the judiciary head-on, but it gave 18 of the 21 judges who resigned after 2008 post-retirement jobs. How can one presume these judges did a completely independent job when they were on the bench when, at the same time, they were angling for post-retirement jobs?

Third, independence is institutionalised partially by the current system of promoting judges to the position of CJI only on seniority. It can be institutionalised further by giving all judges a longer tenure – maybe by extending their retirement age to 68 from the current 65 (as long as they are otherwise physically and mentally fit). In the US, Supreme Court judges never demit office till they themselves opt to retire. Justice Katju’s suggestion that CJIs should be appointed by merit is not a good suggestion because this would be open to executive misuse – even though there is concern over the quality of judges now in courts. A longer tenure and a ban on holding public office after retirement may be better guarantees of judicial independence.

Fourth, uprightness alone is not enough. The political orientation of a judge is not unimportant for his or her selection – even though it is not the primary concern. A left-winger like Prashant Bhushan, who might otherwise be eligible for the position of judge given his legal experience, might well have answered the presidential reference on 2G auctions differently from an SH Kapadia. We need political neutrality in judges as much as independence to get a good judiciary.

Much has been made of political interference in judiciary due to NJAC, but here’s a poser for the judiciary itself: when it is an interested party in the NJAC litigation, how will it answer the charge that it faces a conflict of interest in this case, where it is both (indirect) litigant and judge? Most sitting and retired judges have opposed the NJAC, and so it is a safe bet that the judiciary does not want NJAC.

The Supreme Court can prove its independence by refusing to hear the case against the NJAC. The time to check its constitutional validity is when it is manifestly shown to have problems - not now. It is time for the judiciary to back off from a needless confrontation with the executive on this.