The Indian Judiciary was hardly a topic of discussion before 2014, but after Narendra Modi took over as the Prime Minister of India that year, things turned upside down. The Supreme Court has gone through probably its most intense period under the rule of the NDA Government since the days of Emergency in the ’70s.
The most significant criticism of the Congress era was the judicial appointments including appointment, transfer and suspension, which were completely dependent on the whims of the executive. The Supreme Court was forced to consider a solution in order to guard its independence. However, after the NDA government took over, there has been a considerable shift in the power dynamics over judicial appointments.
Right after the BJP government came into power, it cleared out its intention regarding the judicial appointments. In June 2014, senior advocate Gopal Subramanium was about to be elevated to the Supreme Court bench but the Central government slip up collegium recommendations to reject the proposal. An intelligence report was leaked which had uncharitable comments on Subramanium, ensued a highly charged acerbic statements in a public forum, resulting in an abrupt withdrawal by the senior advocate.
The government denied any involvement in the events. However, there was speculation that the Modi government didn’t appreciate the fact that someone was allegedly the amicus curiae in the fake encounter case of Sohrabuddin Sheikh and his wife. It is to be mentioned that the BJP president Amit Shah was among the 22 accused in the case but he was discharged in December 2014.
There was a tight wrestle between the government and the judiciary regarding the supremacy over judicial appointments. The Modi government soon introduced an amendment to the Constitution to create the ‘National Judicial Appointments Commission (NJAC) only to be struck down by a constitution bench of the Supreme Court within 10 days. Since then, the relation between the Centre and the Collegium has gone downhill.
Union minister Arun Jaitley heavily criticised the NJAC judgement marking it as “tyranny of the unelected”. There was a stand-off between the government and the Collegium about MoP finalization and it resulted in the delay of judicial appointments. The Centre is constantly clashing with the Collegium recommendations regarding judges’ appointments and transfers which escalated the unfilled vacancies in high courts all across the country. The Calcutta and Karnataka high courts were functioning with half sanctioned strength while there were lawyer strikes, calling for filling up the vacancies. Amidst all these, a divided Supreme Court Collegium emerged.
Aadhaar Act as a Money Bill
Another controversy was delivered by the Supreme Court which is known as the Aadhaar judgement. It stated that introducing Aadhaar Act as a money bill will not be considered as illegal. The majority judgement by Justice A.K. Sikri noted that Section 7 of the act said Aadhaar based identity authentication can be used for subsidies delivery and benefits or service charged on the consolidated fund of India, it can also be introduced as a money Bill.
According to Article 110 of the Constitution, a money bill can have provisions only regarding the Union Government’s money receiving and spending. According to many, this decision of the Constitution bench will have grave consequences in the legislative process since it will give power to the government to completely bypass the Rajya Sabha while introducing any bill as a money bill at its whim by showing similarities with the consolidated fund of India.
No timely hearing for the petitions against demonetisation and electoral bonds
Numerous petitions were filed in the Supreme Court challenging the announcement of demonetisation in November 2016. The legal side of the petitions was that the decision was taken by the Government itself without proper consultation with the RBI board.
The Supreme Court announced to thoroughly examine the constitutionality of the decision on November 25, 2016. Even though several concerns were found to relevant after the demonetisation-revelations and the current status of the economy, no effective hearing was made regarding the matter.
The same happened with the electoral bonds scheme as challenging petitions were filed right after the passing of the Finance Act 2017 which introduced the legislative amendments regarding the schemes. Unfortunately, the case came to action on March 2019 and by that time, most of the electoral bonds were purchased. It was a factor of grave concern since the Election Commission of India itself stated that the scheme has a dangerous impact on political funding.
The Supreme Court has exhibited its reformist spirit in several matters including the civil liberties issue. There were no political stakes involved and the Court has adopted a progressive stand. Several examples include the Privacy case, Sabarimala case along the major strike down of the Section 66A IT Act, Section 377 & 497 IPC.
The Supreme Court was successful to get the government to appoint the Lokpal. The Constitutional Bench judgement in the Delhi-LG case gave primacy to the decision of the elected government of Delhi while resisting the constant attempts of the Central to control it. The midnight intervention of the court in the Karnataka assembly case is also commendable since it ensured that proper conventions will be followed in government formation.
The current scenario
Currently, the Modi government has instructed the Union Ministry of Law and Justice to “find out a way for reducing delays and arrears” in the country’s justice system.
There are over 3.3 crore cases left pending in the Indian courts. The government has also asked to initiate structural changes in the existing set up in order to reduce the pendency of cases. It is mostly for the subordinate courts at the district level where almost 2.84 crore cases have remained pending for several years.
In the session of 25th September, the Ministry of Law and Justice asked the main legal experts of the government to place suggestions to tackle this crucial problem. Sources reveal that Narendra Modi has shown concern with the problem of pendency of cases, hence he asked Union Law Minister Ravi Shankar Prasad to take all the necessary steps to address the issue.
The Prime Minister has also proposed the idea of providing better infrastructure to district and lower courts while strengthening the subordinate judiciary. The government is also contemplating setting performance standards to enhance accountability in the judicial system through effective measures.