A close dance of executive and judiciary is dangerous for democracy

The polarisation and the partisan nature of the politics of today's India will now be osmosed into the judicial branch which owes its sole allegiance to the Constitution, writes Rohin Bhatt.

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POST the release of the shocking videos of the Prime Minister visiting the Chief Justice of India (CJI)'s home, and praying to Lord Ganesha while the Chief Justice sings, there has been a spate of articles criticising the same, with people of far more experience at the Bar and far more learned than I am.

For example, senior advocate Indira Jaising, in the Indian Express writes that this is a violation of the oath of office by the CJI and raises multiple questions on the issue, while on the other hand, senior advocate Sriram Panchu has been far more charitable and has said, "It is likely that this arose from a polite invitation which was responded to, and the heads of the executive and the judiciary conducted themselves with propriety when they met. It is unlikely that any conversation would have transpired which should cause us alarm."

However, to a certain extent, the wider conversation around the constitutional imperative of the necessary friction between the executive and the judiciary has been missing in the public debates.

The question, however, is, what does this mingling mean for the future of our democracy? Or are these visuals being read into far too much?

At the outset, we must be clear on a few things: first, the government is the largest litigator before any court today. Given the system of checks and balances, it is clear that the judiciary is often sitting over the legal correctness of governmental action and legislation.

As a result, the relationship between the two is bound to be inevitably antagonistic. Common law systems are, by and large, no strangers to this. Sir Edward Coke of England, for example, was briefly jailed after he clashed with King James I.

Judicial intervention, if it has to be meaningful, must always constrict the scope of arbitrary executive action, and this seldom goes well with the powers that be. Given this situation, the fraternisation between the CJI and the Prime Minister has not gone down well with the people in the country, and for the right reasons.

Also read: Is the separation of power an obstacle to remove which Lord Ganesha can be summoned?

However, this is not the first time there have been overt displays of faith by the CJI. He visited Dwarka, Somnath and Ayodhya in the full glare of the media, and the politics of the visuals are not lost on the people, who have been seeing similar pictures by the Prime Minister also.

In such cases, the bonhomie is staring in the face of the people, given how the government has seldom lost a case before the Supreme Court since 2014, and the elevation of several judges who have given hate speech, or have been members of the Rashtriya Swayamsevak Sangh (RSS)-affiliated Adhivakta Parishad, or have unabashedly praised the Prime Minister.

The polarisation and the partisan nature of the politics of today's India will now be osmosed into the judicial branch which owes its sole allegiance to the Constitution.

The second issue here is that this growing perception of the partisan nature of the judicial branch does not bode well for its future. Unlike the executive, which wields the sword, or the legislature, which controls the purse, the judicial branch has nothing but its moral high ground.

This moral high ground ensures that the public follows its orders, despite it being the weakest branch. After the far-right turn of the United States Supreme Court and the growing belief that it is partisan, data shows that there is a sharp fall in the trust in the Supreme Court.

A recent publication from the Annenberg Public Policy Center at the University of Pennsylvania notes, "From 2005–19, large majorities of Americans across the political spectrum either had a 'great deal' or a 'fair amount' of trust in the Supreme Court, according to APPC surveys.

"From 2019 to 2022, however, confidence in the Supreme Court plunged 22 percentage points, from 68 percent to 46 percent, a finding mirrored in data from other survey firms, including Gallup and Pew."

We may not be that far along in the journey, however, it is also the time for the court and the judges to wake up to the fact that they are increasingly being seen as polarised.

Also read: Can Indian citizens demand public probity from the CJI?

There is a growing fear amongst constitutionalists and lawyers that the judiciary is being saffronised, through theocratic judges, judges who have openly praised the Prime Minister while being in office, judges who have made claims such as demography being changed (without evidence) and repeated the party lines of the Bharatiya Janata Party (BJP), in violation of their oaths of office.

Some, like Ritu Raj Awasthi and Arun Mishra, are rewarded with plum post-retirement jobs such as Chairman of the Law Commission and Chairman of the National Human Rights Commission respectively. Others, like Rohit Arya, join the BJP after demitting office. The more adventurous ones, like Abhijit Gangopadhyay, give up their office and join the BJP.

A few uncharitable commentators have also put CJI Chandrachud amongst these judges. One may not agree with this characterisation, but a thing is certain: these visuals have besmirched the incumbent CJI's tenure and it is likely that this is the defining moment of his judicial tenure.

But for me, it is not about personalities, it is about the institution— a seemingly harmless invitation has done a great harm which might be undone.

The Supreme Court Bar Association and the Advocates on Record Associations have maintained a worrying and deafening silence over the issue. One hopes that sense prevails and that there is immediate course correction by the court as a whole and also the CJI.