Judicial Independence And The Ability To Question

Looking back at some of the actions and statements towards Covid management initiated by the dispensation of the day in the initial days, one can only thank the Supreme Court for asking the more serious and meaningful questions, Suo Moto (literally, on its own accord).

The Supreme Court’s unilateral intervention forced the dispensation to make national policy for distribution of ‘essentials’, it questioned preparation for rural areas, it insisted on centralisation of procurement/distribution of vaccines, it got ratification on procurement, pricing, and distribution.

It essentially picked up the gauntlet to ‘question’ when distractions and empty assurances were predominant. The Supreme Court scrutinised the state (in)action during a particularly vulnerable time (pandemic), without anyone petitioning them.

One school of thought may view Suo Moto powers to be intruding and unnecessarily trampling on the Executive, and yet another view could be that of a necessary succour when silly distractions, mythology, and inadequacy of planning e.g., mass movement of workers without thinking-through arrangements, was happening.

Indeed, there was ‘transgression’ (a governmental term that got popularised post Indo-Chinese standoff) of turf between the Judiciary and the Executive. But the governance was certainly forced towards betterment in terms of subsequent planning, priorities and science-based decision making, thereafter.

It goes without saying that the Government is never excited or gracious whenever its (in)actions are called out to question. But that is how the spirit of ‘checks and balances’ in a democracy works.

It is therefore unsurprising that Suo Moto powers (amongst others) becomes one of the prickly issues besetting the Executive and the Judiciary, and yet another matter of unstated tension between politicos trying to ‘control’ the judiciary towards its own agenda or even ideological preferences.

Natural tensions between the Executive and Judiciary are healthy for the thriving of democracy, and therefore perennially susceptible to suppression by any insecure and revisionist leadership to usurp. In recent times, India has seen unprecedented shadowboxing with even many apolitical/constitutional offices leaning on the argument of ‘respecting people’s verdict’. This is a barely concealed metaphor for diminishing the institutional independence, reasoning, and ‘questioning’ ability of the Judiciary, as warranted by the Constitution.

In early 70’s the tendency to control the Judiciary was challenged with the judgements of the likes of Justice Jagmohanlal Sinha of Allahabad High Court and Justice VR Krishna Iyer of the Supreme Court in upholding legality and constitutionality that ultimately led to the regrettable blot of Emergency. The Judiciary had stood in the way of dangerously autocratic tendencies amongst politicians.

Recently again, Allahabad High Court had taken Suo Moto cognisance of the horrific handling of the Hathras victims’ cremation by stating, “The incidents which took place after the death of the victim on 29.09.2020 leading up to her cremation, as alleged, have shocked our conscience”. The court had noted, “allegations of high handedness by the state authorities resulting in violation of the basic human and fundamental rights not only of the deceased victim but also of her family members. As it is, the deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds”.

Was it interference into the Executive’s domain (as could be claimed) or was it humanity, necessity and constitutionality that can be attributed to the Allahabad High Court’s action?

Israel too has witnessed an unprecedented uproar by its citizenry to call out the bluff of autocratic Prime Minister Netanyahu’s attempted ‘judicial reforms’ as a crude way to silence the institutional independence of the judiciary to freely ‘question’, when circumstances disallow individuals to do so for fear of reprisals, societal judgement, or any other disabling reason.

Israel’s democracy ultimately triumphed over attempts to diminish the judiciary as the larger citizenry rose above partisan positions, pettiness, and attempted distractions to disallow the same.

Now, even Pakistan’s creaking democracy (amongst its other sovereign imperatives) joins the list of elected leadership across global democracies seeking to curb the powers of judiciary via purported ‘reforms’. However, so vitiated is the air of sleazy politics in Pakistan that the only lens of viewing any opposition to the Government’s move (including that of protecting Judiciary’s independence) is via the binary lens of ‘pro-Imran’ or ‘anti-Imran’ postulation.

Also, given the formation of the incumbent ‘coalition’ government in Islamabad with the two major national parties PML-N and PPP (besides others), the onus of championing the necessary push-back is on the equally discredited Imran Khan’s PTI, which has had its own tryst with the judicial system.

Topical compulsions have led Imran Khan’s PTI to champion the cause as it sits in the Opposition benches, however, association of this crucial issue with Imran’s PTI runs its own risk of partisanship and disrepute, given the slippery slope that he and his politics stand on.

However, typical of avoiding hard ‘questioning’ by anyone, the Pakistan National Assembly passed the Supreme Court (Practice and Procedure) Bill 2023, depriving the Chief Justice of powers to take Suo Motu notice. In a telling comment that shows how the politicos bait-and-wait for some taint of partisanship in an apolitical institution, before swooping in with so-called ‘reforms’, the Federal Minister for Law and Justice Azam Nazeer Tarar justified the move to curb the wings by incredulously saying that they waited, “until a voice came from within the courts”. The ‘divide’ within the legal fraternity was speedily latched on to and slammed home by the wily politicos.

What had preceded this move by the Pakistani politicians was the uncomfortable questioning by the Chief Justice of Pakistan (CJP) on the Government delaying elections. The ECP (Election Commission of Pakistan – supposedly ‘independent’) had cited deteriorating security conditions and unavailability of finances and security personnel to justify the delay.

But the CJP asked a fair question to the Interior and Defence Ministry to provide the shortest span of time in which the security situation would improve, so polls could be held? The Government obviously preferred answering no-one and felt deeply cornered by the line of ‘questioning’.

The CJP also gently reminded, “The purpose of judicial proceedings is to keep the state functioning in accordance with the Constitution”, again to the extreme discomfiture of the dispensation, and so it had brought in the bill to retrain the Judiciary by asking the Judiciary to “refrain from interfering in political and administrative affairs”.

Certain division (owing to partisan loyalties or other considerations?) within the Judiciary were gleefully lapped up by the politicos to diminish the Judiciary and weaken the essential levers of ‘checks and balances’, that ensure a thriving democracy.

Though, Israel has been a rare (even surprising?) nation that read through the politicos intent in diminishing the judiciary by bad-naming it as an impediment to progress and galvanised support in favour of the Judiciary (overcoming partisan and even ideological preferences). They had wisely sensed the plausible diminishment of Judiciary as a sure-sign of more authoritarianism by the ‘strongman’ Benjamin Netanyahu and his unbridled lust for power.

Many typical Right-Wing supporters like those from the ‘Uniform’ fraternity and its retired combatants, imminent civil servants and almost all foreign missions across the world had sent a powerful message of dissent towards tinkering with the essential levers of ‘checks-and-balances’ in a democracy.

Sadly, in the Sub-Continent, everything is viewed from a binary and partisan lens of ‘either with us or with them’, and those who disagree are automatically ‘othered’. Often forgetting that standing up for the Judiciary’s independence or even speaking against any government action does not tantamount to going against the country. Those who spoke against Emergency in the 70’s were not ‘anti-Indian’, but patriots and democrats.

Lt General Bhopinder Singh (Retd), is the Former Lt Governor of Andaman & Nicobar Islands and Puducherry. Views expressed are the writer’s own.