Govt & Judiciary: Is the SC a Little Too Mindful of Its 'Lakshman Rekha'?
Never has the court made such strenuous efforts to be on the right side of the executive
‘Lakshman Rekha’ is the boundary drawn by Ram’s younger brother when, at his sister-in-law’s persistence, he breaks his vow to Ram, his elder brother – of guarding Sita – and abandons her in search of him. Ram had been sent off by Sita to bring her a golden deer, which was actually a demon sent by the asura king to lure and distract Ram away, so that he could kidnap his wife and forcibly take her to his Kingdom, Lanka. Ram left Laxman on guard. However, as Ram felled the beast, he imitated Ram’s own voice and cried for help. Distraught Sita then sent Laxman off to aid his elder brother. While leaving, Laxman drew his Rekha. Sita would be protected as long as she remained within this Rekha.
So, itihaas (history) gave India a concept that has thereafter been held up as a symbol of limitation, of boundaries: the Lakshman Rekha. So, when within a span of days, persons at the helm of the two pillars of the Indian state – the judiciary and the executive – fall back on the Lakshman Rekha, it is worthwhile to invest in closer scrutiny.
The Effort to Be On the Right Side of Executive
At the recently concluded Chief Justices’ Conference, Chief Justice Ramana said:
“Constitution provides separation of power among three organs and the harmonious function between three organs strengthens democracy. While discharging our duty, we should be mindful of Lakshman Rekha”.
Thereafter, when the Supreme Court pulled off its interim order in the sedition case, directing the provision to be kept in abeyance, Law Minister Kiren Rijiju said:
“We respect each other. The court should respect the government, and legislature. The government should also respect the court. We have a clear demarcation of boundary and that Lakshman Rekha should not be crossed by anybody.”
Ever since former CJI Ranjan Gogoi eagerly accepted a legislative post within months of retirement as Chief Justice, on the pretext of furthering the cause of executive-judiciary cooperation, the relations between these two wings have come under increasing focus.
For a government that started its run with a mammoth pushback from the judiciary in the form of a rejection of the National Judicial Accountability Commission – by striking down the constitutional amendments the government had passed through with unanimity of opinion within the political class – it hasn’t done pretty badly thereafter.
Perhaps in the recorded history of India’s top court (the brief Emergency period excluded) never has the court made such strenuous efforts to be on the right side of the executive. Some of the circumstances that lead to such an irresistible conclusion are as discussed below.
From Farm Laws to Article 370, Smooth Sailing for Govt
One, while the government is yet to finalise the Memorandum of Procedure (MoP) for judicial appointments and is taking its sweet time in doing so, the court has virtually succumbed to the executive. Not only is it averse to hauling up the executive for the delay in clearing names of candidates for judicial appointments, but in fact, in several instances, such as in the case of Justice Kureshi, it has gone out of its way to ensure that it does not offend the sensibilities of the government.
The court suffered a stalemate in the matter of appointments for months, and yet, it was steadfast that no recommendation should emanate from it that would be viewed as confrontational to the executive.
It was perceived that recommending Justice Kureshi’s name (whose orders had led to the present Home Minister suffering incarceration) for elevation to the top court would not have been viewed positively by the powers that be.
Two, the Supreme Court, through the judicial process, had appropriated unto itself the power of judicial appointments. While the executive was accorded a right to seek reconsideration, if the name of the candidate stood reiterated by the court, the executive’s hands were tied. However, while the court has, in the last few years reiterated many recommendations, the government has simply sat over them, while the court has not said a word publicly. Recently, NLS graduate Aditya Sondhi, whose name stood reiterated for being appointed as judge of the Karnataka High Court, withdrew his name as the government simply sat over his recommendation.
Three, in cases that could be politically embarrassing for the government, such as the Article 370 case and the electoral bonds case, the court has betrayed no urgency for their quick disposal. Needless to say, there was only one beneficiary of this delay – the government itself.
Four, in cases where the government has found it politically sensitive to address an issue – be it with the controversial farm laws or the sedition law – the court itself has stepped in and passed orders, to the extent of even staying the operation of such laws. This has proved to be a major face-saver for the ruling party.
Migrant Workers & the SC
Even in matters such as the constitution of tribunals and the extension of the tenure of the Director of the Enforcement Directorate, where the executive has acted in the teeth of court orders by resorting to statutory amendments and ordinances, the court has surprisingly maintained a rare calm in dealing with the government.
In fact, as point six, recently, the court went as far as invoking its extraordinary inherent power “to do complete justice” under Article 142 of the Constitution bizarrely in a tax matter, and that, toom contrary to the tax code and against the taxpayer, saying that the government would suffer and have to face a multiplicity of litigation.
Seven, during the COVID-19 pandemic, the court was eager to accept the version of the government on the plight of migrant workers. It was only later, in the wake of public resentment at the plight of these hapless workers who had walked for hundreds of kilometres, that it finally stepped in. A case of too little, too late.
Who Is Sita, and Who Is Ram?
There has been an occasional flash in the pan as well, and it is not that this regard and consideration for the government has been unstinted. For instance, in the matter of bail to a Union Minister’s son who was accused of being involved in mowing down protesting farmers, the court strongly came down to quell the perception that an accused with powerful connections can get an easy pass. The court’s firmness also ensured that the government finally put in place the E-shram portal for workers in the informal economy. Even in the Pegasus case, the court at least constituted a probe committee, brushing aside all opposition from the executive.
So, our bird’s eye view indicates that both protagonists have by and large respected the Lakshman Rekha; in fact, the judiciary has respected the rekha a little too much. Now, some may ask who is Sita and who is Raavan in this tale. I leave that to your vivid imagination.
(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
Subscribe To Our Daily Newsletter And Get News Delivered Straight To Your Inbox.