Even Ganapati cannot fix the breach of people’s trust in the judiciary

The Constitution envisions the judiciary as a check on executive power, and any perceived closeness between these two branches could undermine that role, writes Anand Teltumbde..—.WHAT is wrong with Narendra Damodardas Modi performing Ganapati Puja at the house of Dhananjay Yashwant Chandrachud? Can they not meet socially? As devout Hindus, they are culturally permitted to invite each other on festive occasions..Why, then, is there a fuss over the video of them performing the aarti of Ganapati? Why have some senior legal luminaries publicly condemned it? Surely, no law has been violated in this Ganapati Puja. Nor has any religious code of Hinduism been breached. There is truly no issue if some Chandrachud meets some Modi or vice versa to worship their God..The problem arises because these gentlemen are not ordinary individuals. They both head crucial branches of power, forming two of the three vital legs (judiciary and executive) that uphold the constitutional State..The outrage stems from the perceived breach of the basic principle of judicial independence. It is believed that the Indian Constitution advocates the separation of powers, and such bonhomie between the Chief Justice of India (CJI) and the Prime Minister undermines these principles..Far more important is the people's trust that tenuously rests on the perceived independence of the judiciary from the executive. If this trust is breached, the entire edifice of the democratic State might collapse..“Why, then, is there a fuss over the video of them performing the aarti of Ganapati? Why have some senior legal luminaries publicly condemned it?.Much of the outrage comes from the legal fraternity, overtly focused on the independence of the judiciary. It has missed out another constitutional principle— secularism..India has evolved a unique concept of secularism: the State has no religion and treats all religions equally. In a country with an overwhelming majority (more than 80 percent) of one religion and a first-past-the-post type electoral system, secularism's nonviability was exposed right from its birth..With Modi's coming to power, it stands completely shattered. Over the last decade of Bharatiya Janata Party (BJP) rule, where Islam has been openly targeted as anti-national and its adherents, Muslims, reduced to second-class citizens, people have stopped speaking about secularism. But it does not follow that the chief custodian of the Constitution should also be unmindful of its value..Also read: Is the separation of power an obstacle to remove which Lord Ganesha can be summoned?.Unfortunately, contrary to the popular notion, neither separation of power nor secularism exists explicitly in the Constitution. Both principles are left to the moral convictions of the rulers. In these times of moral decay, we must recognise these constitutional deficiencies, which unscrupulous power wielders exploit to the hilt..The principle of separation.This notion is derived from the model of a democratic State which holds that its three components— legislature, executive and judiciary— must remain in equilibrium by staying separate..This ensures that each branch exercises checks on the others to maintain an internal balance. French political thinker Montesquieu is credited with this idea of separation of powers..He believed that if power is centralised, justice becomes arbitrary. In the grand treatise on politics and law, De L'Esprit des lois, he wrote, "There is no liberty if the judicial power is not separated from the legislative and executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.."Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body to exercise these three powers.".He argued that if all power is concentrated in one body, it can be dangerous, as laws become arbitrary and flawed..The concept of this doctrine is to prevent abuse of power by the authorities. It asserts that no organ of the government can exercise power beyond its given scope..Also read: Cover letter for job application for the post of judge.The doctrine is based on four principles: (1) Exclusivity, which divides government into three structural organs, (2) Functionality, which delineates the functions of each organ, ensuring no overlap, (3) Checks and balances, which ensures the organs monitor each other to stay within constitutional bounds, and (4) Mutuality, which fosters cooperation rather than confrontation..No separation in the Constitution.In India's Constitution, apart from the separation of judiciary envisioned in the Directive Principles under Part IV of the Constitution, which may be seen as a wish list of the Constitution makers, there is no separation of power..“The problem arises because these gentlemen are not ordinary individuals. They both head crucial branches of power, forming two of the three vital legs (judiciary and executive) that uphold the constitutional State..While introducing the Draft Constitution, Dr B.R. Ambedkar, as Chairman of the Drafting Committee, admitted that there was no separation of legislature from the executive:."The Presidential system of America is based upon the separation of the executive and the legislature. So that the President and his secretaries cannot be members of the Congress. The draft Constitution does not recognise this doctrine. The ministers under the Indian Union are members of Parliament. Only members of Parliament can become ministers.."Ministers have the same rights as other members of Parliament, namely, that they can sit in Parliament, take part in debates and vote in its proceedings. Both systems of government are of course democratic and the choice between the two is not very easy.".Prof. K.T. Shah, himself a lawyer and a socialist economist, had moved an amendment for the separation of powers of legislature, executive and judiciary. Dr. Ambedkar vehemently defended the draft Constitution in which no separation was provided and rejected the amendment..While he was unyielding on the separation of legislature and executive, he conceded that "even under the parliamentary form of government, the separation of the judiciary from the executive is an accepted proposition, to which we ourselves are committed by the Article that we have passed, and which is now forming part of the Directive Principles. I, therefore, think that it is not possible for me to accept this amendment.".This is the Article 39-A which was not part of the draft Constitution and was inserted after much deliberation in the Constituent Assembly as it exists as Article 50..Also read: No judge should be afraid to grant bail.During the Constituent Assembly discussions, an amendment was proposed by Prof. Shah and Shri Jaspat Roy Kapoor, a lawyer, suggesting that members of the judiciary should not accept any office of profit from the government post-retirement..It concerned the independence of the judiciary from the executive. Surprisingly, Ambedkar did not see any virtue in the proposition, and argued: "The judiciary decides cases in which the government has, if at all, the remotest interest, in fact, no interest at all.."The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the government. Consequently, the chances of influencing the conduct of a member of the judiciary by the government are very remote, and my personal view, therefore, is that the provisions which are applied to the Federal Public Services Commission have no place so far as the judiciary is concerned.."And I have said that the relation between the executive and judiciary are so separate and distinct that the executive has hardly any chance of influencing the judgment of the judiciary. I therefore suggest that the provision suggested is not necessary and I oppose all the amendments.".He was wrong. The fact is that the government was and continues to be the single biggest litigant, accounting for nearly 50 percent of the pending cases according to none other than former CJI N.V. Ramana..“India has evolved a unique concept of secularism: the State has no religion and treats all religions equally..Today, at the hands of a government that is bent on exploiting every such lacuna in the Constitution to the hilt, it is only surfacing as an issue. There have been at least four cases in recent years of the current government appointing retired judges of the Supreme Court to plum posts as rewards for their favours..Within a month of retiring from the Supreme Court of India, Justice S. Abdul Nazeer was appointed governor of Andhra Pradesh, a reward seemingly for his contribution to the Ayodhya Ram Mandir controversial judgment..Earlier, Justice P. Sathasivam and Justice Ranjan P. Gogoi were appointed as governor of Kerala and member of the Rajya Sabha, respectively, not to discount the appointment of Justice Arun Mishra as the chairperson of the National Human Rights Commission..At least one scientific study on this matter establishes that the phenomenon of the government influencing the judiciary is quite established in India. A study conducted by Madhav Aney, Shubhankar Dam and Giovanni Ko analysed all reported Supreme Court of India cases involving the government from 1999 to 2014, covering two terms of the Congress government and one term of the BJP government..Also read: How has the composition of the Supreme Court changed under CJI Chandrachud's leadership?.The study revealed that pandering incentives influence judicial decision making. It also discovered a correlation between delivering judgments favouring the government and the likelihood of being appointed to prestigious post-Supreme Court positions..These findings indicate the existence of corruption, where government influence over judicial decisions undermines judicial independence..Thus, the Constitution had squarely rejected the doctrine of separation of power. Even the separation of the judiciary from the executive was included in the toothless Directive Principles of State Policy after much deliberation during the discussion of the final draft..It was only after the Constitution was adopted that the progressive ethos of the then Supreme Court created boundaries by applying the doctrine of separation of power..The Supreme Court of India has ruled on several cases that establish the importance of judicial independence from the executive and other branches of government and also upheld the independence of the judiciary as the basic feature..On Secularism.Similarly, the Constitution does not explicitly mention secularism. In fact, the word 'secular' is absent from its text. The principle of secularism is inferred from fundamental rights and the Directive Principles of State Policy..A specific amendment moved by Prof. K.T. Shah that the Constitution should specify secularism and socialism; Dr. Ambedkar had dismissed it as superfluous. While he explained that socialism was included in the Directive Principles of State Policy, he ignored secularism altogether..“French political thinker Montesquieu is credited with the idea of separation of powers..Despite this, the public imagination has firmly rooted secularism as a constitutional principle, surviving through decades despite violations..It is not personal.The BJP and the Rashtriya Swayamsevak Sangh (RSS) have attempted to downplay the controversy by arguing that the CJI and the Prime Minister acted in their personal capacity..Also read: When prejudice gains a majority, the law becomes a minority.However, this argument is untenable for individuals holding such high offices. Even without the media coverage, the puja, in public view, by two constitutional functionaries, raises questions about infusing religion into the judiciary..India is a multi-faith society, so how does the public display of one religion by constitutional functionaries comply with their oath of office? In S.R. Bommai, the Supreme Court observed that "the Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart"..Modi has been brazenly flaunting religion right since he has come to power. It is not only on some discrete occasions like the inauguration of the new Parliament building which happened with chanting mantras from Hindu scriptures, the bare-bodied Prime Minister prostrating before a motley bunch of sadhus and sants or during the inauguration of the Ram temple at Ayodhya, when he himself assumed priesthood, but also his every action brazenly flouts the principle of secularism..But for the CJI, the custodian of the Constitution, a display of his Hinduness in public glare may be unbecoming. The CJI could perform puja quietly at his home, could even invite his brother and sister judges, without much controversy..Another lame excuse the BJP camp has advanced is about previous Prime Ministers attending the iftar parties. An iftar party on the last day of Ramadan is not strictly a religious function and is organised to share good food and goodwill with all others..Moreover, iftar parties were attended by many people who do not perform any religious rituals. It cannot be compared with just the Prime Minister being invited to perform puja..The video that has gone viral was shared by Modi himself saying, "Joined Ganesh Puja at the residence of CJI, Justice D.Y. Chandrachud ji. May Bhagwan Shri Ganesh bless us all with happiness, prosperity and wonderful health," triggering reactions..Also read: Sanatana Dharma and the Dravidian Movement: A response to J. Sai Deepak— 4.Whether it is an election season or not, Modi is gripped with such insecurity that none of his actions is without consideration of votes. He is seen wearing typical Marathi attire with a trademark ghati topi to woo the Marathi voters in the forthcoming election in Maharashtra which is so crucial for him..Modi's polarising politics has always relied on defiant assertion of his Hinduness. His publishing the video (himself and through his friendly ANI) is a deliberate move to create controversy which would polarise the Hindu votes in his favour..Question of judicial ethics.While there may not be any explicit rule against the CJI inviting the Prime Minister to his home to perform the Ganapati aarti, this act raises significant moral and ethical concerns..“The government was and continues to be the single biggest litigant, accounting for nearly 50 percent of the pending cases according to none other than former CJI N.V. Ramana..Independence, fundamentally, is a moral attribute that transcends strict technicalities. The independence of the judiciary from the executive and legislature is not merely a procedural requirement but also a question of public perception..Justice must not only be done but also appear to be done. The CJI, as the head of the judiciary, bears the responsibility of upholding public confidence in the impartiality of the Supreme Court..The Supreme Court has previously characterised an ideal judge as someone who lives and behaves like a hermit, free from desires or aspirations. This "life of seclusion" is intended to prevent judges from interacting with people whose rights and liabilities they adjudicate..A judge's impartiality must be above reproach, and their aloofness ensures their independence, as citizens expect decisions free from bias. In 1997, the Supreme Court adopted the Restatement of Values of Judicial Life, a document outlining 16 principles judges are expected to follow..Although non-enforceable, it serves as a moral code. In its 195th Report, the Law Commission recommended that violating this code should be considered an act of misbehavior, though this recommendation has yet to be acted upon..Two principles from the code stand out: "A judge should practice a degree of aloofness consistent with the dignity of his office," and "Every judge must at all times be conscious that he is under the public gaze, and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.".This also pertains to judges speaking publicly on topics unrelated to law, which could expose biases and raise doubts about their impartiality..Also read: Can Indian citizens demand public probity from the CJI?.The International Criminal Court's Code of Judicial Ethics similarly stresses the principles of independence, impartiality and integrity. Article 3, for instance, states: "Judges shall uphold the independence of their office and the authority of the court and shall conduct themselves accordingly in carrying out their judicial functions. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.".“A judge's impartiality must be above reproach, and their aloofness ensures their independence, as citizens expect decisions free from bias..This episode raises serious moral and constitutional concerns about judicial independence. Two key moral issues emerge:.1. Perception of partiality: Although the event was a religious function, the optics of the sitting CJI hosting the Prime Minister could cast doubt on the judiciary's impartiality..Public trust in the judiciary hinges not only on its actual independence but also on how that independence is perceived. Such meetings can lead to suspicions that personal relationships might influence judicial decisions, particularly in politically sensitive cases involving the government. Senior advocate Indira Jaising pointed out that such actions may compromise the separation of powers..2. Conflict of interest: The CJI may be handling, or could potentially handle, cases directly involving the executive, including constitutional challenges, electoral disputes and other high-stakes matters..The principle that a judge must not only be impartial but also appear to be impartial is paramount. Hosting the Prime Minister in a personal capacity could be seen as compromising this standard, as it gives the impression of a potential conflict of interest..Judicial independence is not only a formal requirement but also a moral and ethical necessity. Judges are expected to avoid even the appearance of bias or undue influence..“Within a month of retiring from the Supreme Court of India, Justice S. Abdul Nazeer was appointed governor of Andhra Pradesh, a reward seemingly for his contribution to the Ayodhya Ram Mandir controversial judgment..The Constitution envisions the judiciary as a check on executive power, and any perceived closeness between these two branches could undermine that role. Even if this meeting was innocuous in intent, it risks undermining the spirit of constitutional propriety..The CJI must be acutely aware that the Supreme Court's credibility rests on the public's trust in its ability to deliver justice impartially, free from external pressures or personal biases. Once this trust is compromised, it may be incredibly difficult to restore, even for Lord Ganapati!

Even Ganapati cannot fix the breach of people’s trust in the judiciary

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