The criticism of judicial intervention on legislative design and policy prescription has been widely accepted for strengthening the institutional independence and accountability of the institution. But the recent outburst of the Chief Minister of Andhra Pradesh against Justice N.V. Ramana indicates a new low in the inter se relationship amongst the institutions in the country. The Chief Minister of Andhra Pradesh shot a letter to the Chief Justice alleging an attempt to destabilise the Government through judicial process by Justices of the High Court of Andhra Pradesh, allegedly aided by Justice N.V. Ramana.1
The Chief Minister has named some incumbent Judges and the Chief Justice of the High Court as directly or indirectly giving judgments and orders at the instigation of Justice Ramana.2 Notably, Justice N.V. Ramana will be taking over as the next Chief Justice being the second senior most Judge in the Supreme Court. Should the written complaint against the second senior most Judge iterates the genuine apprehension about the compromise on judicial process by a head of the Provincial Government or advances the political agenda to score against the foes in electoral politics?
The letter has not rolled the judicial process into action and not sought any relief from the Supreme Court. It has flagged the issue of inappropriateness of the judicial process by alleging favouritism for the leader of opposition of the State. Also, the nature of the allegation is such that it would damage the judiciary’s credibility as an institution. Further, it may become a referral point to encourage the political parties to play to the gallery by using judicial decisions to score a brownie point against opponents and reap the benefit in the election. The allegation levied in the letter can give armoury to the political parties to threaten the judicial dispensation of the country.
In light of this, the write-up examines the rationale of the constitutional regulation of the political parties. Judiciary must be insulated from unwarranted attacks from all the stakeholders of the society. For the same, the political parties have a critical role in securing the independence of judiciary. Though, the political parties are governed under a set of statutory laws on a range of issues such as the registration of political parties, election, disqualification of a member from the legislature, political symbols, etc. but such regulation cannot be a substitute of the constitutional regulation.3
Independence of judiciary and political parties
Judicial independence is a sine qua non for the thriving of democracy. Democratic values get nurtured with awaken citizenry and disciplined political parties. The Supreme Court has not only iterated the independence of the judiciary but also attributes participatory democracy as unalterable features of the Constitution.4 Enough measures are incorporated either under the constitutional scheme or statutory provisions to insulate the court from scandalous criticism and unsubstantiated attack from the individuals and the institutions. Article 505 mandates institutional independence, whereas functional independence is guaranteed under the Part V and Part VI (deal with Supreme Court and High Courts) of the Constitution.
The Supreme Court exercises enormous discretionary power in deciding hard cases when there is no constitutional text and history, and the pronouncements in past opinions do not speak clearly. In such cases, the judiciary’s independence weighs on the proprietary shown by the Judges in shaping the law without getting influenced by the considerations that are not warranted in law. If political parties continuously engage in building a false narrative against the judiciary, then the Judges, in their subconscious mind may pick the thread from the partisan attributes of politics.
On eliminating the external influences on the court, Thomas M. Keck remarked that: “What comes to the fore, rather, is the question of whether the justices are likely to act independently of the wishes of other power-holders. Whether we call their decisions legal or political, are the justices willing and able to challenge regime commitments?”6 For maintaining independence, Judges are insulated from the political process through a constitutional guarantee of their terms and conditions of the office. Everything that is needed to maintain independence of judiciary must be expected from the political parties. The Court must not succumb to the political pressure. The cherished goal of the judicial independence should not be hijacked on the trivial political considerations.
Constitutional regulation of political parties
Every player involved in good governance, directly or indirectly, must adhere to the constitutional idealism and nurture the cherished values incorporated therein. None should be allowed to bring in anarchy and absolutism. In this regard, a constitutional mandate plays a constructive role in limiting all the players’ power. There is no denial that the political parties make an enormous impact on the government’s functioning in the constitution’s parliamentary system. Political parties present electoral agenda before the people and implement it after occupying power through the ballot.
After the Second World War (WW II), political parties have progressively been regulated by the Constitutions of European democracies and received recognition as necessary institutional components of the democratic system.8 Political parties are acting as agents of citizens and acting as institutions that contribute to the balance of interests in society. Political parties enjoy enormous authority in a political system. Thus, through oversight and restrictions, there is a need to prevent any misuse of power by them. In his seminar work, Stone Sweet observed that new constitutionalism emphasises the role of judicial review and constitutional courts in assessing the constitutional legality of other legal norms and ensuring that political elites are acting upon democratic principles.9
Ideally, the constitutional regulation of political parties must be clearly spelled out in the text of the Constitution. But such absence from the text should not be a reason to leave the matter to be addressed by parliamentarians when the action of the political parties is thwarting the hard-earned values under the Constitution.
In recent times, there have been numerous instances of criticising the judiciary’s functioning or the conduct of an individual Judge by the political parties that are based on convenience than a valid criticism to strengthen the institution10. One such instance is the letter released by the Chief Minister of Andhra Pradesh, who himself faces severe charges of corruption, in the public domain which has dented the credibility of judiciary and shaken the faith of the people. The strength of judiciary lies on the confidence reposed by the people. The judiciary communicates its commitment towards constitutional goals through reasoned judgment. It does not speak through any other medium other than the written judgment. It is desirable to raise the issues of legal nature against the member of the judiciary so that adequate redressal within the legally tenable mechanism is achieved. If the nature of allegation against the Judges by the political parties does not conform to legally measurably standards then the parties must not be allowed to breach the constitutional proprietary which legitimises the action of all the institutions that shape the destiny of the country.
Political parties represent varied ideology which gets accepted or rejected during election and ensures representation of conflicting view on the floor of the house. Parliament offers a balance of power that guarantees accountability of the Government to the electorates who represents their view through political parties. Political parties must comply with constitutionally entrenched standards so that their activity could be reviewed by the court.
The determinative role played by the political parties in setting the agenda of the Government attracts the observation made by the Court in State (NCT of Delhi) v. Union of India11 (2018) wherein it was stated that: The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The responsibilities lie with every “institutions of the nation life” to work towards the accomplishment of these ideals. Political parties are integral part of “the nation life” and drive the agenda of the elected government.
Way forward
Though the letter has not sought any relief from the office of the Chief Justice of India, it may be seen as an opportunity to address the conduct of political parties concerning other institutions of the State. The letter’s content narrates the prospect of drawing ulterior benefit by the political party, which plays a role in the Judges’ appointment while being in power. The Constitution should not only expect the commitment from the State’s traditional institutions i.e., the legislature, the executive, and the judiciary, but also from other institutions, such as political parties and multinational corporations, which facilitates in accomplishing the goals enshrined therein. Judicial accountability has been a matter of legal discourse, whereas the accountability of the political parties is evading the constitutional scrutiny since independence. The suggestion to constitutionally regulate the political parties will bring accountability and entrenchment in the State institutions. Such regulations will set the tenor of the judiciary’s criticism on unfounded/unsubstantiated ground by the political parties. As the Attorney General has correctly turned down the request to initiate a contempt petition against the Chief Minister, the letter should be seen as an attempt to compromise Judges’ individual independence and not merely an issue between two individuals holding higher constitutional offices.
To conclude, I would iterate the apprehension raised by Mr B.G. Kher, a member from Bombay in the Constituent Assembly, on spoilsport played by the political parties in achieving the constitutional goals after attaining independence. While congratulating the members of the Assembly to accomplish the task of framing the Constitution in a short span time for such a diversified country, he aptly remarked that:
In our anxiety to achieve our dreams of equality, of liberty and fraternity and social justice it us not lose sight of the fact that even the attainment of these great things is possible if we do not collapse in the beginning of our new life and the whole machine is not wrecked either through ignorance or through wickedness. There are political parties who are anxious to create a chaos in the country because they believe that in that way alone and through violence alone, they can achieve the fulfilment of their dreams.12
Let us ensure that the political parties do not disturb the progress made in the last seven decades in achieving the constitutional goals with the resolute support of the citizens of the country.
† Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, e-mail: uday@iitkgp.ac.in.
1 See Bhadra Sinha and Rishika Sadam, ‘‘Terrorising Judiciary, Bench-Hunting” — How Andhra CMs charges against SC Judge are being seen, 11-10-2020, available at <https://theprint.in/judiciary/terrorising-judiciary-bench-hunting-how-andhra-cms-charges-against-sc-judge-are-being-seen/521532/>.
2 Upendra Baxi, Andhra CM Letter to CJI Alleging Wrongdoing by HC is a first. SC must Settle Matter Expeditiously, 2-11-2020, available at <https://indianexpress.com/article/opinion/columns/andhra-pradesh-cm-cji-jagan-mohan-reddy-n-v-ramana-6912795/>.
3 In pursuant to the constitutional mandate, the Election Commission has notified the Election Symbols (Reservation and Allotment) Order, 1968 with an aim to regulate the matters related to the choice and allotment of the symbol. Political parties are registered and recognised as State or national parties under this Order. It aims to contain the unwarranted growth of the political parties as they play instrumental role in shaping the aspirations and channelise the support of the people. Notably, these regulations deal with the relationship between the political parties and electoral process. It fails to address the issues of internal democracy of a political party or accountability of its action before the writ court.
4 Dushyant Dave, The Unassailable Keywords for the Judiciary, 25-2-2020, available at <https://www.thehindu.com/opinion/lead/the-unassailable-keywords-for-the-judiciary/article30906480.ece>.
5 <http://www.scconline.com/DocumentLink/1bVtfM50>.
6 Thomas M. Keck, Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools, Law & Social Inquiry, Vol. 32, No. 2, 2007, pp. 511-544.
8 Gabriela Borz, Justifying the Constitutional Regulation of Political Parties: A Framework for Analysis, May 2016, available at <https://www.researchgate.net/publication/303444982_Justifying_the_constitutional_regulation_of_political_parties_A_framework_for_analysis>.
9 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe, Oxford University Press, Oxford (2000); ibid.
10 For instance, Justice Arun Mishra has praised the Prime Minister, Mr Narendra Modi, in an international judicial conference was criticised by media and the Supreme Court Bar Association. See, <https://www.thehindu.com/news/national/bar-association-dismayed-at-justice-arun-mishras-praise-of-pm-modi/article30922443.ece>; non-disclosure of the author of the judgment in Ayodhya case invited criticism on account of accountability and transparency in the judicial process, see, S.R. Sarkar, India’s Per Curiam, <https://www.epw.in/journal/2020/41/commentary/indias-first-curiam.html>.
11 (2018) 8 SCC 501 : 2018 SCC OnLine SC 661.
12 Constituent Assembly of India Debates (18-11-1949), available at <http://loksabhaph.nic.in/writereaddata/cadebatefiles/C18111949.html>.