Kiren Rijiju is no Ram Jethmalani or Arun Jaitley.
A career politician unburdened with any legacy of actual legal practice, but with a genuine degree in law, Rijiju has been promoted to be the Union Minister for Law and Justice. In that capacity, he has prioritised governmental control over the judiciary, while simultaneously paying lip service to its independence.
During the tenures of the past few chief justices, who have not been as compliant as their predecessors, he has been especially proactive in an effort to denude the judiciary of public trust.
Unlike his predecessors Jaitley and Jethmalani who were great courtroom warriors with a sense of reverence for the judicial process, Rijiju has no experience in persuading judges to his preferred point of view.
Irreverently haranguing unelected judges, on the strength of a huge parliamentary majority and orchestrated social media applause, is the style that Rijiju appears to prefer.
A few weeks ago, he took issue with the Supreme Court's order, which put the sedition law on hold. He said:
"We told the Supreme Court that the government is thinking about changing the provision of the sedition law. Despite that, the Supreme Court struck down the provisions of the law. I was very upset about it.”
He further added:
“There is a Lakshman Rekha for everybody. Let us not cross the Lakshman Rekha in the interest of the nation.”
These comments drew widespread criticism, even from regime supporters. Former Solicitor General, Harish Salve said:
“The Law Minister crossed the Lakshman Rekha by what he said in my opinion. If he thinks that the Supreme Court must hold its hand when it sees a brazenly unconstitutional law and be hostage to the government’s kindness to amend that law, sorry that’s wrong.”
Now Rijiju has said that the Supreme Court should hear only those cases which are relevant and appropriate for being taken up by a Constitutional Court.
"If the Supreme Court starts hearing bail applications and starts hearing all frivolous PILs, it will definitely cause a lot of extra burden on the Honourable Court, because the Supreme Court by and large is treated as a Constitutional court," he said.
Executive Vs Judiciary: The Backstory
The friction between the executive and judiciary, is a throwback to the late 1960s and 1970s, when the Indira Gandhi government sought a "committed judiciary," which would not interfere but support the government's socialist path.
The current government, with its two-term majorities, has largely gotten used to a compliant judiciary. However, not all judges and chief justices have been fully compliant. The government has been at the uncomfortable end of a few pointed questions and not all orders have gone the government's way. Trust but verify, seems to be the current fashion and sealed envelopes are not very welcome.
In these circumstances, constitutional authorities keep the campaign going, by one viral comment or the other. Vice-President Dhankar spoke against the collegium and the striking down of the NJAC.
BJP politician Sushil Kumar Modi, has further added to the assault by questioning the Supreme Court's decision to hear the case for same-sex marriages.
Speaking in the Rajya Sabha Modi said that 'two judges' can't just sit together and decide on such a socially significant subject.
"In India, same-sex marriage is neither recognised nor accepted in any uncodified personal laws like the Muslim Personal law or any codified statutory laws. It will cause complete havoc with the delicate balance of personal laws in India," he said.
Other politicians have chipped in with comments on long vacations in the Supreme Court, mounting pendency of cases and reminders that people have by majority, given their verdict in favour of the government and unelected courts, should not undo popular will.
The judiciary is now the new Nehru, whose antiquated thinking on constitutional niceties, cannot withstand the bulldozer of popular perception.
And How Has The Judiciary Responded?
Judges traditionally have had no recourse to public opinion. They spoke only through their judgments. However, in the internet era of viral quotes, judges have their own comebacks.
During the 2G hearings, when confronted with the 'Lakshman Rekha' of government policy, Justice Ashok Ganguly was quick to retort:
"It was because Sita crossed the Lakshman Rekha that Ravan could be killed.”
Rijiju's slings and arrows have drawn a measured response from some judges. While hearing a case on delays in appointing judges, Justice Sanjay Kaul has in no uncertain words told the attorney general, that the collegium system is the "law of the land" which should be "followed to the T.”
The unequivocal message was that just because there are some sections of the society who express a view against the collegium system, it will not cease to be the law of the land.
The court's order pointedly read:
"We expect the Attorney General to play the role of the senior most law officer in advising the Government of the legal position and in ensuring that the legal position is followed. The scheme of the Constitution requires this Court to be the final arbiter of the law. The power to enact the law is with the Parliament, but it is subject to the scrutiny by this Court. It is important that the law laid down by this Court is followed or else people would follow the law which they think is correct.”
In his own way Chief Justice DY Chandrachud responded to Rijiju's criticism on case management. In a case where a man was sentenced to nine consecutive sentences of two years each for electricity theft, he observed:
“.. When you sit here, no case is too small for the Supreme Court and no case is too big. Because we are here to answer the call of conscience and the cry for liberty of the citizens. That is why we are here. These are not one-off cases. When you sit here and burn the midnight oil, you realise everyday there is one case or another like that.”
The Law Minister Would Do Well to Remember…
The order in pertinent part addressed itself to Rijiju and those sharing his views, when it said:
"The history of this court indicates that it is in the seemingly small and routine matters involving grievances of citizens that issues of moment, both in jurisprudential and constitutional terms, emerge. The intervention by this court to protect the liberty of the citizens is hence founded on sound constitutional principles embodied in Article 136 of the Constitution. The right to personal liberty is a precious and inalienable right recognised by the Constitution. In attending to such grievances, the Supreme Court performs a plain constitutional duty, obligation and function; no more and no less.”
Rijiju would do well to remember that even under absolute monarchs like James I, who believed in the divine right of kings, his attorney-general Francis Bacon wrote — “Let judges also remember, that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty. Let not judges also be ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws.”
The Indian republic has invested judges with the power of lions. It would be a betrayal of that investiture, if the rulers of the day were to seek mere meek mewing from tamed pussycats. As of now, the lions are growling, does Rijiju want them to roar and more?
(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)