The Great Indian Power Struggle

Supreme Court of India.
Photo: NDTV

By Nebil Nizar

Supreme Court of India will resume the hearing in the much celebrated National Judicial Appointments Commission Act tomorrow.  The Executive branch of the largest democracy in the world is in a power struggle with one of the most independent Judiciary in the world. As both sides weigh heavy, we have to cross our fingers and watch the closing round, even though one side is now in an advantageous position.

The Government’s first salvo with Institutions was with the Reserve Bank of India headed by the former I.M.F. Chief Economist, Reghuram Rajan. The move to strip the powers of the central bank to control interest rates was seen as a threat to the ‘Independent monetary policy’ of India. The Government ‘beat a retreat’ when economists and bankers attacked the controversial move with tooth and nail.

The ‘modus operandi’ of the Government plan to hijack the decision making power of the RBI was by appointing a rate fixing committee comprising of seven members- four from the Government of India and three from the RBI. When this move failed, the same modus was applied on the Indian Judiciary. A committee was proposed to appoint Judges to the Supreme Court and High Court comprising of nominees of the Executive and Judiciary. The committee was also to have two independent members, whose qualifications were not prescribed, but who could veto any decisions. After the Central Bank and economists, now the Indian Judiciary and lovers of Independent Judiciary were shocked.

Despite being advised by eminent jurist, Upendra Baxi, to take the much safer Advisory Jurisdiction route, Government of India went ahead with the Constitutional amendment route. The controversial decision was portrayed by the Executive as ‘Judiciary versus Legislature’. Finally, the decision in the Fourth Judges case was pronounced last month- Judiciary asserted its Independence. The constitutional amendment was scrapped by the Supreme Court.

The apex court now asked the litigant, Government of India, to suggest steps to improve the existing Collegium system. The irony is that the decision for making the now scrapped 99^thConstitutional Amendment was Government’s opposition for the same Collegium system. The next move of the heavyweight, Executive, in the Temple of Justice is closely being watched by most in intellectual circles.

The Executive has four options which may be exercised in unison or multiple-

1.       Refrain from giving its ‘wise’ counsel to the Supreme Court

2.       Share its slice of wisdom with the highest seat of Justice

3.        File a Review petition against the Judgement.

4.       Bring in another Constitutional Amendment plugging the loop.

When noted political thinker Montesquieu urged in ‘The Spirit of Laws’ for a constitutional government with three separate branches, he might have legitimately expected each branch to respect the other. India should not go back to the infamous power tussle of the 1970s between then Prime Minister Indira Gandhi and the Judiciary. Let History not repeat itself.


*myidnebil@gmail.com