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Jaitley’s Claim of the Judiciary Destroying the Legislature is Unjustified and Dangerous


May 14, 2016

The finance minister was wrong to say the courts are destroying the edifice of India’s legislatures “step by step, brick by brick.”


I was shocked to read Arun Jaitley’s statement in the Rajya Sabha on May 11 (2016), in which he said that the judiciary is destroying the edifice of India’s legislature “step by step, brick by brick.” He did not stop there; he chose to continue accusing the judiciary of “misadventure,” suggesting that this is not in the “interests of Indian democracy.”


While Jaitley seems to have made the statement in the context of the Congress’s alleged decision to “hand over taxation power to the judiciary”, his statement acquires particular significance as it came one day after the Bharatiya Janata Party lost the floor test in Uttarakhand, thanks to the Supreme Court’s intervention.


I don’t know what has compelled the finance minister to make this statement. If recent reports are any indication, Prime Minister Narendra Modi is keen to pit flamboyant BJP Rajya Sabha MP Subramaniam Swamy, a perpetual rebel, against him. Swamy recently alleged, albeit indirectly, in a TV interview, that he, Jaitley, is trying to undermine the investigation of the AgustaWestland chopper scam. This allegation comes amidst reports, in a section of the media, that Swamy may replace him as India’s next finance minister. I wonder if Jaitley is nervous as he realises that Modi is seeking to sideline him sooner rather than later. I can understand his frustration.


However, an accusatory statement directed at the judiciary from an eminent and perceptive advocate like Jaitley has completely shaken me. Let me set the record straight. It is not the judiciary that is seeking to undermine the executive or the legislature. Rather, it is the executive, led by Modi, that is seeking to destroy the independence of the judiciary – one of the three pillars of our great democracy – in order to remove all the hurdles he sees in his path to autocratic rule.


I would like to cite just two obvious instances that show how Modi is seeking to destroy the judiciary.


On April 6, 2015, addressing the joint conference of chief ministers and high court chief justices at Vigyan Bhawan, the prime minister shared his thinking for the first time: he said that India’s courts “need to be cautious against perception-driven verdicts,” adding that “perceptions are often driven by five star activists.” But one must understand what exactly are “perception-drive verdicts.” Any view or decision emanating from the Prime Minister’s Office, for instance, should essentially be understood as the “perception” of the prime minister. Can one possibly sever the connection between the PMO’s view and that of the prime minister? Obviously not. But if Modi’s logic is to be applied, he as prime minister should not be held responsible for what officials in the PMO do.


Modi’s statement on “perception-driven verdicts” came, significantly, just when a clean chit was sought for BJP president Amit Shah, one of the prime accused in two of Gujarat’s most notorious fake encounter cases – those of Sohrabuddin Shaikh and Ishrat Jahan. The PM’s statement was an effort to drive home the point that the judiciary should not go by the supposed “perceptions” of activists and others that a politician, who acts behind the scenes, is responsible for the crimes committed on the ground. The judiciary may, if it so wishes, “nab” the officials responsible for carrying out the instructions of the politician.


The second, more recent instance is the manner in which the Modi government has been stalling appointments recommended by the SC collegium, of around 170 judges to high courts. The perception is strong, and not without reason, that the government is doing this because the SC struck down its efforts to take control of the appointment of judges through a National Judicial Appointments Commission. One is well aware that the chief justice of India, T.S. Thakur recently expressed his deep anguish over a lack of government interest and delay in the appointments.


Clearly, the government is not very keen to allow the smooth functioning of the SC collegium, which has the power to appoint judges. In fact, it wants to have a say in recommending the names of candidates, insisting that the Memorandum of Procedure for appointing judges should give participatory roles to the attorney general at the Centre and advocates general in the states. Besides seeking the clearance of names from India’s investigating agencies, the government also wants to ensure that there is no transparency in the appointment of judges. It wants the appointments to be protected from the Right to Information Act, apprehending that otherwise, a flood of applications from activists seeking reasons behind rejections will ensue.


These are only two of the many instances of how the government, led by Prime Minister Modi, is seeking to undermine judicial independence. I can understand how difficult it must be for Jaitley to function in the suffocating atmosphere under Modi, who is already under attack from several of his intelligent supporters (Arun Shourie, for one) for running a government single-handedly, without any advice from ministers. I have personally suffered such suffocation in 2002, when I was the minister of industries under Modi as chief minister of Gujarat. I have witnessed how he muzzled the voices of the elected representatives with one hand, and dissent within the BJP with the other.


It is time one realised that individuals with power will come and go – but the democratic institutions of India are strong enough to remain.


The author is a former BJP chief minister of Gujarat.