View: Will judiciary enter the political arena too? All eyes on UK verdict
The belief that the judiciary, apart from being independent, is duty bound to clip the wings of the executive has long enjoyed intellectual sanction.
The first two charges are seasonal. Any air of uncertainty over the passage of a Bill in the Rajya Sabha — where the government has to negotiate issue-based majorities — nullifies the belief that Parliament is a showpiece. Likewise, the government is frequently at odds with the media over the latest piece of outrage. However, the situation keeps changing from headline to headline. In any event, there is media and there is media. Some are traditionally supportive of authority and others see themselves in a permanently oppositional role.
It is the final charge of having ‘managed’ the judiciary that warrants attention. Ever since the Indian Constitution incorporated judicial review, the relationship between the executive and the judiciary has been tense. This was even so at the time of Jawaharlal Nehru, showcased as the model democrat. The very first amendment to the Constitution was triggered by the Nehru government’s exasperation with the courts for blocking its ‘progressive’ anti-zamindari legislation. The ruling establishment then felt that rarefied judges were wedded to the status quo and unable to appreciate popular sentiment.
The belief that the judiciary, apart from being independent, is duty bound to clip the wings of the executive has long enjoyed intellectual sanction. What has changed in recent times is the parallel belief that the judiciary is the ultimate authority and that governance has to be conducted by permanently second-guessing the judges. With the weakening of the opposition after 2014, the doctrine that the judiciary is the final arbiter of politics has also taken root, especially when twinned with judicial activism.
The opposition, especially when the parliamentary numbers are ranged against it, has been inclined to bank on the judiciary to veto the government. A perusal of India’s parliamentary proceedings would reveal the tendency of many opposition MPs — usually lawyers — to reduce political debates to legal proceedings by quoting court judgments. The implicit suggestion is that a legal precedent is somehow sacrosanct and that the legislature is bound by this.
This is not merely an Indian phenomenon. The UK is the home of the principle of parliamentary sovereignty. Politics and the rule of law have operated in autonomous spheres. There are also conventions governing the relationship between the executive and Parliament. The furore over Brexit has, however, created new complications and there is now a possibility that the courts could enter the political arena.
When Prime Minister Boris Johnson prorogued Parliament for some three weeks, he was exercising his executive privilege. This was not the first time Parliament was prorogued for a longer mid-session period but it was definitely a rare occasion when the executive had lost its parliamentary majority, without either the possibility of an alternative government or a snap general election. Johnson was accused of avoiding scrutiny and debate.
Inevitably, references were made to the courts and the result has been two conflicting judgments. The first, by a Scottish court held that the executive decision was illegal; and the second by an English high court ruled that it was beyond its competence to pronounce on politics. The matter is now before the Supreme Court which will soon deliver its judgment.
The judgment is certain to have some bearing on how a parliamentary democracy — and India has modelled itself in a large measure on Westminster — sees the relationship between executive and legislature and the jurisdiction of the courts. If the Supreme Court upholds the English verdict, it will be indicating its unwillingness to be a referee on explicitly political matters. Upholding the Scottish judgment on the other hand will temper the doctrine of parliamentary sovereignty by injecting the principle of judicial review. In effect, the Supreme Court will be ruling on its own powers.
India, no doubt, sets its own norms of governance but this verdict will cast its shadow. In Britain, too, the issue ultimately centres on trying to find a judicial route to overturn a Brexit sanctioned by the expression of popular will.