Recent elections have seen the formation of governments with unprecedented majorities. The BJP at the Centre got the highest number of seats since 1984, while the AAP swept to power in the Delhi assembly leaving just three seats for the opposition. History suggests that governments with brute majority have often exercised unrestrained political will. The Indian constitution wisely subscribes to the doctrine of separation of powers.

Reflecting this doctrine, the Judiciary has a special place to play in our democracy. In the last one year there has been undermining of the courts legitimacy to decide on issues of national importance. To understand the significance of an independent judiciary we need to go back to three historic decisions of the Supreme Court of India, two in 1970 the Bank Nationalization and the Privy Purses Judgments and one in 1985, the Shah Bano case. The Supreme Court on 10.02.1970 struck down the ordinance nationalizing banks and on 06.09.1970 the Court found de-recognition of the princes by a presidential order unconstitutional. These decisions of the Court forced the second nationalization ordinance to remove the provision forbidding private banks from continuing banking business and also specified compensation for the banks. Similarly a constitutional amendment had to be passed to change the status of prince’s privy in India. These judgments did not contemplate on issue of policy but fulfilled the Judiciary’s duty of testing the ordinance and presidential order on constitutional law.

What made these decisions remarkable was that these decisions were made when the popularity of a Congress party committed to socialist principles was extraordinary. Only a few months later in 1971 the Indira Gandhi led Government came to power with 350 out of 520 seats in parliament! Similarly In 1985 the Shah Bano judgment recognized the right of alimony for a Muslim woman, a verdict later diluted through Legislation by a majority Government.

The Court has made clear that the Union cannot take away liberties guaranteed by the constitution nor can the legislature and executive function contrary to the separation of powers. The Supreme Court through Kesavanand Bharti case sought to protect the Fundamental Rights from even the Parliament. Our constitutional scheme recognizes the role of the Supreme Court as the final interpreter of the constitution.

In recent times , It was the Supreme Court which struck down the policy of coal allocation, cancelled telecom licenses, nullified section 6A of DPSE ACT 1946 increasing the independence of CBI, brought in concept of “institutional integrity” in appointment of CVC etc. Common to these judicial decisions and to the public debates that followed is the issue of “corruption”- the very plank on which BJP contested the election.

However now, with 283 seats it is no surprise that the National Judicial Accountability Commission (NJAC) bill has been passed. The current Government has been hostile to any criticism against the bill. The Attorney General during the hearing stated, “Adjudicate as you please but the collegium system is buried and the Parliament will re-legislate even if constitutional amendment is struck down”. The message is clear.

Appointment of Judges will now have to face scrutiny of the political class. Does this imply that political interference was impossible sans the NJAC? Unlikely, if we recall what happened when prominent lawyer Gopal Subhramanium was chosen by the Supreme Court collegium to be elevated as a judge of the Apex Court. What the NJAC perhaps ensures is institutional intervention by the executive. The Prime Minister has recently stated that activists are a problem and the Court must not be influenced by their concerns. This came soon after activist Teesta Setalvad was given anticipatory bail by the Supreme Court and the High Court of Delhi had to strike down orders of the Government in the blocking of Green Peace funds to protect the individual’s constitutional guarantee of free speech and movement. HRD Ministry’s ‘indirect’ role in banning a discussion group of students shows scant regard for free speech rights. The Central Government’s much touted commitment to transparency and independence of institutions also seems open to question with the delay in the appointment of a Chief Information Commissioner. This has led in the last 8 months to 38,000 pending cases and an undermining of the Right to Information Act. The Delhi High Court has now asked the Centre to explain this inordinate delay.

A majority in the Delhi Assembly has also led to brazen unconstitutional acts such as issuing a circular which would leave the media open for defamation if they are to criticize the ruling government, to promote vigilante politics such as the video recording of incidents and using it as prima facie evidence for arresting persons. There is an advocacy of kangaroo courts rather than a court of law with due process.

Ideologies that govern political power have changed as social movements challenge extant caste, class and gender relations. It is the constitution that provides a permanent guarantee of certain liberties known as Fundamental Rights. The Judiciary will continue to protect, interpret, and broaden these rights both through private litigation, which may require protection of shareholders rights from the executive or the wrongful dispossession of property by the state. As also through tools such as public interest litigation to nullify unconstitutional state action such as abolishing Salwa Judum; protecting free speech through striking down provisions such as 66A of the IT Act or directing the abolition of manual scavenging practiced by authorities of the State such as the Railways.

To ensure that majority Governments do not undermine legitimate criticism by the Courts and Media it is imperative to hold up the principle of separation of powers, central to checks and balances of any functioning democracy.

(Chimni is an Advocate at the Supreme Court).