Court-Govt Balance Is True Justice

While jurisprudence is attributed to the Romans, the French—who insisted on liberté, égalité, fraternité—claim credit for justice. The 18th-century French philosopher Montesquieu, considered the father of the principle of checks and balances in a democracy, wrote in The Spirit of Law: "To prevent this abuse [of power], it is necessary from the very nature of things that power should be a check to power." The principle of democracy is corrupted not only when the spirit of equality is lost, but also when the spirit of extreme equality is taken up. He argued for the separation of church and state powers to protect democracy from nepotism, despotism and distortion.

- PRABHU CHAWLA

His prescription has stood civilisation's test of time: the legislative branch makes laws, the executive enforces them, and the judiciary interprets them. He emphasized these powers must remain separate, yet interdependent. India seems to be still figuring out the contours of a superstructure facilitating the harmonious working of the three branches independent of each other, yet simultaneously dependent on each other.

As the sordid saga of the alleged cash recovery from Delhi High Court judge Yashwant Varma's house unfolds, the undeclared Cold War between the executive, legislative and judiciary is out of deep freeze. The scandal has acquired epicedial dimensions for the judiciary. It has become a powerful and legitimate excuse for the political establishment to tame the judiciary, laying the blame on the collegium's primary right to appoint judges—'Judiciary isn't meant by the judges, for the judges and of the judges.'

Instead of approaching the scandal célèbre as an ugly aberration, the establishment is in a splenetic scurry to curb the judiciary's power to choose justices for the higher courts. The 1975 Emergency was the tipping point in this conflict. Ruling politicians were the ones who chose the judges. The chief justice of India was a rubber stamp with just one role: green-light the names finalised by the government. This led to the subversion of human rights and even the supersession of some judges. Ironically, it was the judiciary itself which bestowed these blanket powers.