How The BJP Has Fuelled a Judiciary-Government Face-Off

The Supreme Court’s ruling on Arunachal Pradesh is the third consecutive setback for the Modi government, which has used its criticism of the judiciary to divert public attention from its own performance.

Prime Minister Narendra Modi with Chief Justice of India T.S. Thakur. Credit: PTI

Prime Minister Narendra Modi with Chief Justice of India T.S. Thakur. Credit: PTI

New Delhi: The collaborative functioning of the three pillars of democracy – the judiciary, executive and legislature – seems to have collapsed. Expected to uphold constitutional values, the torchbearers of the three wings have recently clashed. The tussle between an assertive judiciary and a reticent government, each trying to stress their independence in relation to their roles and responsibilities, has consequently ushered in unprecedented chaos.

On July 13, when the Supreme Court reinstated the Nabam Tuki-led Congress government in Arunachal Pradesh, a state that has witnessed political turmoil since January, the move was perceived as yet another slap on the face of the BJP-led government. The central government’s decision to impose President’s rule in the state and to support the rebel Kalikho Pul government was criticised by many legal experts as ‘unconstitutional’ and a blatant misuse of executive powers by the Centre. Many saw the government’s move as an unconcealed attempt to wrest political power by engineering a rebellion against a democratically-elected state government.

Just a few months ago, the Uttarakhand high court struck a blow to the union government by setting aside President’s rule in the state and restoring the Congress government. The Centre imposed President’s rule on March 27, a day before chief minister Harish Rawat had to prove his majority in the assembly. In a pithy judgement against the hasty decision to impose President’s rule, the court noted: “Absolute power can spoil anybody’s mind. Even the president can go wrong and in such case[s] his decisions can be subjected to scrutiny. Indian courts have the power to scrutinise all orders.”

The pressing question

The question that assumes significance in this context is: who is actually responsible for the impasse?

Most instances of friction between the government and the judiciary in the last two years indicate that the latter has taken only a few suo motu decisions. It has mostly responded to the petitions the opposition and civil society activists have filed against the union government’s unilateral decisions, as the cases of Uttarakhand and Arunachal Pradesh make clear.

However, as and when the judiciary has overruled the government’s decisions, the government has vociferously defended itself, almost always invoking the problem of ‘judicial overreach’ in executive functions. While urging MPs not to hand over budgetary and taxation powers to the judiciary, union finance minister Arun Jaitley even went on to say, “Step by step, brick by brick, the edifice of India’s legislature is being destroyed”. Jaitley was responding to the Congress’s demand for a dispute redressal mechanism under a judge in the context of the GST bill, but his reactions also came at a time when the court had overturned the imposition of President’s rule in Uttarakhand.

Never before has a government attacked the judiciary so openly. This has led to the debate on where the ‘lakshman rekha’, a sacred boundary of sorts, of the judiciary actually lies and how far the union government can go in exercising its discretionary powers within a democratic set-up. A few instances make it clear that the BJP-led central government has undermined democratic principles, forcing the judiciary to rectify the situation.

Friends like governors

The method adopted by the BJP in imposing President’s rule in Uttarakhand and Arunachal Pradesh show that the party used friendly governors to exercise the provisions of Article 356 in order to gain political advantage from an unstable political environment.

In Arunachal Pradesh, governor J.P. Rajkhowa, a known BJP sympathiser, stepped outside the realms of his powers to advance the assembly session and instructed the house to put the speaker’s disqualification as its first agenda. Firstly, the governor cannot summon the house without the chief minister’s consent and secondly, he does not have the power to decide the agenda of the house. Rajkhowa’s hasty decisions came just after the 11 rebel Congress MLAs, supported by the BJP, submitted a notice to remove speaker Nabam Rebia. The ensuing fiasco saw the imposition of President’s rule in the state. Clearly, the governor compromised democratic values by acting in a politically partisan way. The Supreme Court order has now reinstated the speaker while restoring the Congress government.

Similarly, the governor of Uttarakhand, K.K. Paul, recommended President’s rule fearing ‘possible pandemonium’ during the floor test. In this case too, the governor went by the unverified versions of the rebel MLAs and the BJP to promptly file his suo motu report to the union government, acting as the proverbial pawn of the BJP.

With the UP polls around the corner, the governor of UP, Ram Naik, has sent controversial reports to the Centre on the recent Mathura violence and Kairana’s so-called ‘Hindu exodus’, leading to speculations among political observers that the BJP is again using the governor for its political benefits.

This alarming situation has led many legal experts to step up their resistance against what is clearly a blatant misuse of powers. Speaking to The Wire, senior advocate Dushyant Dave said: “It [the Arunachal judgement] is the victory of the constitution. It reinforces the theory of separation of powers that we have. It keeps the other wing in check. If one wing makes a mistake, the other wing steps up and corrects it. The judgement, I feel, is a very positive interpretation of the constitution”.

In much harsher words, Kamini Jaiswal told The Wire: “They [the five-judge bench] have struck it down on the basis of the constitution. They have found that it was in violation of constitutional principles. What the government has been doing is working overtime on all sorts of unconstitutional activities. Its criticism of ‘judicial overreach’ is completely unjustified.”

“How many times has it happened that two such orders have been set aside? When the government appoints only cronies as law officers, it is highly unlikely that it will get any independent advice on law,” she added.

The first humiliation: the NJAC

The first major humiliation the BJP faced at the hands of the judiciary was the National Judicial Appointments Commission (NJAC) judgement last October. In a landmark judgement, the Supreme Court struck down the 99th Constitution Amendment Act, 2014, and the NJAC Act, 2014, passed in parliament.

Many proponents of judicial accountability have been justifiably demanding that the appointments of the judges be made transparent. But the BJP came up with a solution that may have severely compromised the independence of the judiciary. It proposed the formation of the NJAC, which gave significant say to the executive. Had the Supreme Court bench not overturned it, the union law minister would have played an important role in appointing the judges in the Supreme Court and all the high courts.

Reprimanded over drought and food security

After months of governmental inaction, despite widespread clamour about the impact of a severe drought in the country and the consequent helplessness of farmers and agricultural labourers, the Supreme Court was forced to direct the government to evolve a transparent drought management policy. The court also directed the government to set up a National Disaster Mitigation Fund within three months as a measure of immediate relief. Reprimanding the governments, both at the Centre and the states, the Supreme Court said in its order: “An ostrich-like attitude is a pity, particularly since the persons affected by a possible drought-like situation usually belong to the most vulnerable sections of the society.”

Unfortunately, the order was met with a hostile response from the government. Its apathy towards farmers was cloaked by administrative constraints. Jaitley commented on the order: “We have the National Disaster Response Fund and the State Disaster Response Fund and now we are being asked to create a third fund. The appropriation bill is being passed. Now outside this appropriation bill, we are being told to create this fund. How will I do that? India’s budget-making is being subject to judicial review.”

Hearing the Swaraj Abhiyan petition about the non-implementation of the National Food Security Act, the Supreme Court expressed disappointment over the conduct of the states that have still not transitioned to the provisions of the Act. The court also asked the Union government to collate data on rainfall deficit and the implementation of social sector schemes like the Public Distribution System, mid-day meal scheme and the Rural Employment Guarantee Act.

Bad loans, IPL and pollution

The increasing perception that the government has been inaccessible and immune to public criticisms are the primary reasons that civil society activists approach the courts. For instance, bad loans and their poor recovery directly affects common people. However, the lack of interest on the part of the government has bothered many. While hearing a PIL by the Centre for Public Interest Litigation, a non-governmental group, Chief Justice T.S. Thakur asked the government to form a committee to specifically look into bad loans and write-offs by public sector banks.

Similarly, the court has also intervened in order to address the problem of pollution in urban areas, by capping the number of diesel cars. It has intervened to get the Lodha committee to address the problem of corruption and cronyism in the BCCI.

In all these instances, the main reason behind the court’s intervention has been the government’s failure to regulate the malpractices of private businesses that directly affect the people.

The political and economic turmoil that the BJP-led government has created in the last two years has forced the judiciary to intervene in the government, and not vice-versa. The energies of the government, according to many, are not directed towards governance but towards wresting political power in any way possible. The restoration of the Congress governments in Arunachal Pradesh now and Uttarakhand is therefore being viewed by many legal experts and political leaders as the judiciary’s efforts to strengthen constitutional values and speak against unprincipled political practice.

“What we saw in Uttarakhand and Arunachal Pradesh was a blatant and unprecedented abuse of the law. It not only violated the federal structure but also attacked India’s democratic edifice. Why the government cannot concentrate on governance is incomprehensible. The judgement is the third slap on the government’s face – the first was the NJAC, then came Uttarakhand and now it is Arunachal,” said Jaiswal.

The leaders of the regional parties rejoiced over the Supreme Court’s decision and used the order to launch scathing criticism against the government.

Speaking to The Wire, Manoj Jha of the Rashtriya Janata Dal said, “When the BJP says it wants India to be Congress-free, it actually means ‘opposition-free’. It will then say ‘judiciary free’ and ‘media free’. I think that after the landmark Allahabad high court’s judgement disqualifying Indira Gandhi, this is the second-most significant judgement. The judiciary has spoken and has set the clock back. The way the governors have proved to be the BJP’s stooges is alarming. It is a grim reminder for our prime minister to now start practicing cooperative federalism, and not just talk about it. Just because you could not win the election, you use the governor’s position to destabilise the government – how obnoxious is that?”

Echoing this, Tathagata Satapathy of the Biju Janata Dal said, “We are proud of the judiciary for these democratic signals that it gives from time to time. The constitution is an irritant for the Modi government. Two years ago, in the very first session of the parliament, the BJP amended the constitution to absorb former TRAI chairman Nripendra Mishra in the government. We must not forget that the TRAI Act barred a retired chairman from serving in the government. The chairman also had to abstain from serving a private company for a limited period. These provisions to ensure the independence of TRAI and prevent any conflict of interest were included in the Act during the Atal Bihari Vajpayee era. Clearly, the prime minister does not have any regard for that.”

“The current government is trying to be like the Congress of the 1970s. The BJP has learnt the practice of putting stooges as governors and using them as henchmen from that time. Unfortunately for the BJP, people have moved forward and all of them don’t wear khakhi chaddhis,” he added.

The recent judgements against the government’s decisions have also raised doubts over the legal advice it is receiving. Political analysts, in this context, have weighed the performance of attorney general Mukul Rohatgi. Ironically, the BJP’s Subamanian Swamy has gone to the extent of calling him ‘slimy’. Legal experts, too, have alleged that Rohatgi has acted as a stooge of the BJP and has compromised his office. Clearly, the government is driven by political and not legal factors.

Time and again, the judiciary has very reluctantly pointed out the administrative and executive failures of the government. Not very long ago, in an emotional speech, Thakur pointed out the government’s glaring failures in improving the justice mechanisms of India. Not only did he accused the government of stalling the appointment of judges to the high court, but he also squarely blamed it for doing nothing to increase the number of courts in India. “Therefore not only in the name of the litigant… the poor litigant languishing in jail but also in the name of the country and progress, I beseech you to realise that it is not enough to criticise the judiciary… you cannot shift the entire burden to the judiciary,” Thakur said.

He also talked about the vacancies in judicial positions, a big reason for case delays. “Today there are 450 vacancies in the high courts across the country. 450 is a large number… almost 50% of [the] working strength of the high courts…”

The government stands compromised at this juncture, but it remains defiant. Despite the Supreme Court verdict on Arunachal, both the BJP and Pul have said that the state government will file a review petition. This has led to a peculiar situation. Tuki has assumed charge in Arunachal Pradesh Bhawan in Delhi and Pul has refused to resign, leading to a scenario in which there are two simultaneously functioning state governments. Observers believe that this shows the political bankruptcy of the BJP.

“The BJP should have ideally respected the Supreme Court verdict. Had it moved a little backwards, and then routed its energies to create moral and legislative pressure on the Tuki government to prove his political majority, it would have behoved well for a national party like the BJP,” said Aryama, a political scientist based in New Delhi.

For now, however, the party is apparently in no mood to back down.