The fear of executive courts

India urgently needs the return of a thriving legal culture that uncompromisingly calls out political posturing
On Monday, Justice S.R. Sen of the Meghalaya High Court observed in a judgment that “anybody opposing… Indian laws and the Constitution cannot be considered… citizens of the country.” The case involved the denial of a domicile certificate. Justice Sen, however, thought it fit to further note that in 1947 India “should … have been declared… a Hindu country”, and that “our beloved Prime Minister” ought to legislate to grant automatic citizenship to (non-Muslim) religious minorities “who have come from Pakistan, Bangladesh and Afghanistan”. He also noted that “our political leaders” in 1947 “were too much in a hurry to get the independence… thus, creating all the problems today”, and that “nobody should try to make India as another Islamic country”. In parting, Justice Sen directed the Assistant Solicitor-General to hand over a copy of his judgment “latest by 11-12-2018 to the Hon’ble Prime Minister, Hon’ble Home Minister, and Hon’ble Law Minister”. It is tempting to dismiss this as an aberration, like the time that Justice Mahesh Chandra Sharma of the Rajasthan High Court observed that peacocks don’t have sex. Giving in to that temptation, however, would be a mistake. Justice Sen’s ill-advised and ill-judged diatribe is only the latest in a series of instances where judges have inserted themselves into fraught political controversies, and have deployed the prestige of judicial office to lend weight to one side of the controversy. This is an alarming trend. We normally think about judicial independence as independence from the government. Our Constitution is designed to ensure that judges can do their work “independent” of government influence: fixed salaries, security of tenure, and an appointments process that — through the Supreme Court’s judgments — is insulated from executive control. A frightening prospect The record of the courts in protecting civil rights has been a mixed one. In far too many cases, courts have tended to defer to the executive and the government. However, judgments like the national anthem order, the Tirukkural order, the NRC process, and Justice Sen’s recent foray raise an altogether more frightening prospect: that of an “executive court”. By an executive court, I mean a court whose moral and political compass finds itself in alignment with the government of the day, and one that has no compunctions in navigating only according to that compass. Instead of checking and limiting government power, an executive court finds itself marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda. We are not there yet. But we urgently need the return of a thriving legal culture, one that uncompromisingly calls out political posturing of the kind we have seen this week. And this legal culture cannot pick and choose, criticising regressive orders like Justice Sen’s, while exempting judgments that equally cross the line, but nonetheless seem to have achieved a “right outcome”. Only a principled consistency in requiring that judges must always give reasons for their judgment can halt the transformation of the constitutional court into an executive court.

Source :

https://www.thehindu.com/todays-paper/tp-opinion/the-fear-of-executive-courts/article25737863.ece

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