A protocol of deference that is plainly injurious

From alleged judicial over-reach, India seems to be settling for a spell of judicial self-abnegation vis-à-vis the executive

December 17, 2020 12:02 am | Updated 12:48 am IST

Last week Prime Minister Narendra Modi performed an elaborate bhoomi pooja rite for a new parliament building in New Delhi, but only after the Supreme Court was pleased to give its assent for the foundation stone laying ceremony. While allowing the Prime Minister to have his date with the pandits and history, the top court permitted itself to enunciate what seems like an innovative jurisprudence of deference. A Bench, led by Justice A.M. Khanwilkar, expressed its displeasure with the government for unheeding the Court’s directions. According to a report in The Hindu on December 8, “SC nod for Central Vista inauguration”, the Bench said: “We thought we were dealing with a prudent litigant and deference will be shown... We have shown deference to you and expected that you will act in a prudent manner. The same deference should be shown to the court and there should be no demolition or construction.”

This was a remarkable — and a revealing — formulation from the Justice Khanwilkar-led Bench and the honourable judges must be thanked for spelling out publicly what seems to be a new working proposition. Suddenly, so many judicial verdicts, as also many non-verdicts, of recent years have become somewhat decipherable in the light of this protocol of deference. This full disclosure from the Bench should also invite more than a few questions. To begin with: to whom does the apex court undertake to offer deference? An individual? A Prime Minister or a Law Minister? An incumbent political regime? The executive as an institutional entity? The other side of the equation would be: who is offering deference? This or that individual judge? Or the current gaggle of judicial leadership? Or, the entire judiciary, presided over by the Supreme Court, as a constitutional institution? There are no easy answers.

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The U.S., in comparison

Juxtapose this protocol of deference with the bracing rectitude at display in the U.S. Supreme Court. A Court that was supposed to have been “packed” only a few months ago by U.S. President Donald Trump now has simply refused to countenance his electoral goondagiri . The majority of judges in the U.S. Supreme Court may owe their appointment to Republican Presidents but they do not feel it is their institutional remit to remain at the beck and call of the Republican White House. Their judicial exertions are informed, becomingly, by their constitutional insights and moral convictions, not by the partisanship needs of politicians in power. It would be patently unwise for any American President to think that the Supreme Court would owe him any deference and it is unthinkable that a U.S. Supreme Court judge will allow herself to even entertain the thought that the White House was entitled to any kind of deference. One institution respects another institution; but, deference, my Lords?

This protocol of deference becomes baffling and inexplicable. After all, judges are not in the business of soothing and smoothing. The very idea of deference carries with it a suggestion of acquiescence and perhaps even an absence of any kind of constitutional compass. And, pray, what can possibly be the terms of this protocol of deference?

Of course, an institution can sustain its edge only as long as men and women of strength preside over it. So it is with the judiciary. And it can be easily conceded that not all judges necessarily constitute a superior breed of individuals. A judge can only perform within the limits of her/his intellectual depth, moral core, personal quirks, political preferences, and judicial temperament. Not all judges are munificently endowed with qualities and traits for them to develop their own judicial fortitude.

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Checks and balances

Yet, these Lordships are armour-plated with a constitutional design and institutional arrangements, precisely to overcome their personal limitations and to help them perform their dharma with élan and integrity and honour. And, that is precisely what the founding fathers of our Republic had ordained.

In fact in the very early days of our Republic, there was an occasion for the redoubtable Sardar Vallabhbhai Patel to remind an impetuous Prime Minister Jawaharlal Nehru about the limits of power: “we are now faced with a Constitution… that means that for every executive action there must be legal sanction and judicial justification.”

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In practical terms, the political class in its role as the Executive was joyfully undertaking to surrender its power and privilege to resort to arbitrary authority, however pressing may be the claims of national security or of any other urgency.

It was a historic commitment, anchored in the finest sentiment of democratic nobility and it was an undertaking on the part of national political leadership to cheerfully submit itself, its conduct and its policies, to scrutiny and, if warranted, risk a ‘nyet’ from the judiciary. The bottomline was that the moral health and the democratic robustness of the Republic had to be institutionally safe-guarded, and not just left to the benign indulgence of this or that demagogue masquerading as a national saviour.

Comment | Contempt powers, in the people’s name

At variance with traditions

Thanks to the new jurisprudence of deference, the spirit of an accountable executive authority seems to have dissipated. Worse, the higher judiciary seems to have comfortably gone along with the executive’s assertion that once a law has been duly passed by Parliament it was beyond democratic contestation. The High Courts, for example, have been plainly unsympathetic to those who have had reason to critique and protest the Citizenship (Amendment) Act.

This protocol of deference is at variance with the glorious traditions of independence and self-assertion, vigorously re-discovered after the Emergency and proudly re-asserted — till now.

Also read | The independence of the judiciary has collapsed: Prashant Bhushan

Now, a penny has dropped. Because of this peep into the protocol of deference, we can perhaps make sense of a Chief Justice of India accommodating a Prime Minister’s wish to see for himself the Court Number One, the very seat of action. Perhaps we can see the emerging pattern — a Rajya Sabha seat for a recently retired Chief Justice of India.

And, it is no surprise that without anybody noticing it — leave alone, mourning — the very notion of judicial activism, as a practical axiom and as an institutional tool, has simply disappeared from our constitutional repertoire. From the days of an alleged judicial over-reach we seem to have settled for a spell of self-abnegation on the Bench.

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This newly delineated protocol of deference is plainly injurious to the health of our Republic. It has produced an unhealthy lopsidedness in our democratic arrangements. We seem to be forgetting that elections only confer an office — and, not any kind of canonisation. Without any countervailing judicial constraints, errant megalomania is getting emboldened; arrogance has already embedded itself in the ruling clique, and a moral callousness appears to have seeped into the system. Hence, the kisans manning barricades at the Sindhu border.

Harish Khare is a senior journalist based in Delhi

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