Turbulent Phase

Never before had the head of the judiciary publicly and repeatedly expressed exasperation over the government’s continued indifference to the judiciary’s concerns.

- V. Venkatesan

AS THIS ISSUE GOES TO PRESS, THE CHIEF Justice of India T.S. Thakur would have retired, on January 3, after 13 months in office. His tenure witnessed perhaps the most bitter and open struggle for supremacy between the government and the judiciary since Independence. Never before had the head of the judiciary publicly and repeatedly expressed his exasperation over the government’s continued indifference and insensitivity to the judiciary’s concerns. As the CJI, Justice Thakur was more than accommodating of the government’s compulsions in various litigation before the court in which it was a party. But as he retired, he must have wondered what really prevented the government from reciprocating the judiciary’s respect for the separation of powers and the system of checks and balances that defines the working of the Indian Constitution.

Right from May 2014, when the Narendra Modi government came to power at the Centre with a comfortable majority, it was widely believed that the relationship between the executive and the judiciary would enter a turbulent phase. For, a government with a brute majority in Parliament is, by nature, likely to look at a counter majoritarian institution like the Supreme Court with suspicion and seek to clip its wings.

Thus, the very first legislative measure, the National Judicial Appointments Commission (NJAC), which apparently enjoyed all-party support in Parliament and across State Assemblies, was declared unconstitutional and quashed by the Supreme Court’s Constitution Bench in October 2015 as violative of the independence of the judiciary. This meant a return to the collegium system of appointing judges to the higher judiciary, in which the judiciary—and not the executive—has primacy.