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SUMMARY – In this blog post, Pratik Kumar discusses the stand taken by Political Parties on the issue of Judicial Reforms. By evaluating the manifestos of parties in India and Abroad, the blog post dissects the ideological variations in their commitment towards Judicial Independence and Parliamentary Sovereignty. 

Key takeaways

  1. The tussle between the Political Executive & Judiciary often comes out in the Public domain. While the judiciary expresses its opinion through judgements, Parties do this through their manifestos.

  2. A careful analysis of the manifestos in India as well as abroad reveals various strands of opinion ranging from judicial independence to political supervision. The post highlights that regional parties also take judicial issues seriously.

  3. It concludes by suggesting the need for moderation in their stand and a greater degree of public accountability for the judiciary.

I. Introduction to Political Dynamics and Judicial Reforms

In the landmark case of Supreme Court Advocates-on-Record Association Vs. Union of India, the Supreme Court of India had made an important observation. In his concurring opinion, Justice Ratnavel Pandian wrote: 

As we have figuratively stated even at the prefatory note of the judgment, the primary right of proposal of any celebrated judicial structural reforms as well as reforms by the Constitution and composition of the Court is to vest only with the judiciary and judiciary alone because those reforms are concerned only with the judiciary.”

Since independence, the tussle between the executive and the judiciary has played out both in public and in private. One of the main reasons behind this tussle is the closed and protectionist stand taken by the judiciary over the years. It has posed significant challenges to the power balance within the three wings of the state. Therefore, the political executive has always attempted to limit judicial power through different manoeuvres, which the judiciary has resisted. One such manoeuvre is manifested in the programme of the political parties during the elections. 

Political parties are aware that in the recent decades, there has been a growth in the sceptical viewpoint of the masses towards the judicial wing. It has been shaped by different issues including case pendency, appointment of judges, diversity within the judiciary and better access to justice. While a major part of the electorate believes that the judiciary is a trustworthy institution, others are of the view that its credibility is significantly eroded due to the abovementioned issues. Generally, it is the latter category that is wooed by the parties in India as well as abroad, who seek to tap the discontent of these voters with the judiciary.

In the upcoming section, we will examine the manifestos of different political parties in India and abroad to understand how political parties engage with judicial reforms.

II. An Indian Experience With The Manifestos

A study on political manifestos released since the 1952 general elections by the Center for Policy Research reveals some interesting patterns. A textual analysis of these documents showed that while welfare remains the top priority across party lines, the word ‘judiciary’ is accorded a low priority in the manifestos. Among the different parties, the BJP/erstwhile Jana Sangha and Congress Party have focused more on the judiciary, while the communist parties have mentioned it less frequently on average. For instance, the BJP has discussed it with the highest word share in its manifesto (Generally in every election before 2019) which went down during the 2019 general elections. On the contrary, Congress Party has increased its focus on judicial reforms in the last four elections. Perhaps it is an indication of  the asymmetry between the positions of the ruling party and the opposition on reforming the judiciary. As can be guessed, the common subjects covered within  the judiciary are promises of swift justice, legal aid and judicial infrastructure apart from appointing judges through a mode different from the collegium system. 

Interestingly, during the 2019 general elections, Congress Party came up with the idea of a structural change in the Supreme Court functions today. It not only promised to turn it into a constitutional court and establish a different court of appeal for routine matters but also sought to fix the age limit of judges to prevent post-retirement appointments. These ideas are not novel and in the past, the Law Commissions have recommended them as well. However, such structural initiatives are rare in the manifestos of other parties and it seems that Congress Party stands alone in proposing such initiatives. They also made other promises relating to the judiciary such as the appointment of a commission for judicial accountability and better representation of women and other sections of it. 

In our analysis, we found that generally, political parties refrain from taking a radical stance towards the judicial establishment. At its core lies the political reluctance as well as thedifficulty in mobilising a larger audience on such issues. The most important manifesto by impact– the 2019 Manifesto of BJP– is an example. The neatly designed manifesto scarcely even provides space for this topic. That apart, even the mention of the need for judicial reforms is under the topic of economic reforms. This manifesto emphasises the need for strong judicial infrastructure to quickly dispose and enforce contracts. It also promises to establish India as a global arbitration centre. 

Interestingly, the regional parties fare better in this aspect, with a regional touch and flavour in their promises. In the case of one of the oldest regional parties in India, DMK and AIADMK, the issue of Tamil language in the courts coupled with appointments from disadvantaged sections were the primary issue. Further, regional parties also mentioned setting up benches of the Supreme Court in different parts of the country to enhance access to justice. Unsurprisingly, among them, the parties with a social justice plank focus mainly on the representation of disadvantaged groups in the higher courts. On the other hand, a few of them such as Trinamool Congress have expanded their ambit and promised fast-track courts, funding, and reducing case backlogs, it talked about other ambitious reforms such as revamping the procedural laws.

III. How Parties Fare Abroad?

In other countries, the political system and judiciary-executive relations affect the nature of manifestos. In the UK where two ideological strands are known to rule the country, the Labour and Conservative Parties’s views differ substantially except on the principle of parliamentary sovereignty. Take the case of judicial review in the 2019 elections. Besides strengthening and opening the judiciary, the Labour Party promised to work for judicial review and independence. On the other hand, the Conservative Party clearly stated that while judicial review will be strengthened, it will ensure that it is not abused to conduct politics by another means. It also promised a new commission to examine such issues in depth and restore the original character of the institutions. 

In analysing the different manifestos abroad, one can find several commonalities between the manifestos in the US, UK and Australia. Over a decade ago, the Democratic Party pledged that it was committed to bolstering  judicial institutions and their framework. Furthermore, it emphasised its achievement in appointing two Supreme Court judges to maintain the impartiality and fairness in the system. Contrast this with the case of the Republican Party. Its manifesto openly advocated for preventing the appointment of leftist judges who undermine societal values and the original text of the Constitution. Coming down heavily on such judges and the trend of judicial activism in different fields, the party declared it as a threat to the US Constitution. In addition, it talked about saving judicial resources by reducing the number of offences. Overall, it can be said that in matters relating to the judiciary, they reflect their own traditional liberal and conservative position in the ideological spectrum. This trend has been followed by labour and liberal parties in Australia as well, where they stick to their ideological sides. 

IV. Conclusion: Reflections on Judicial Reforms and Political Dynamics

It is safe to say that till now, the judiciary has so far resisted any radical attempt to reform it. This is partly  because it is not directly answerable to the electorate and hence insulated from public pressure. However, when the growing perception of “judicial overreach” is being noticed, it is expected that political parties will take note of it and may devise methods to limit the judiciary’s reach. In such a scenario, such promises in the manifesto are unsurprising.  

Perhaps it would be useful to recall the biblical apologue from the Old Testament as described by Francis Bacon in his Essay on Judicature:

Let judges also remember, that Solomon’s throne (Signifying the political  sovereignty and not judicial sovereignty as misunderstood by the Court in the Second Judges’ case) 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. 

It would not be wrong to say that the mentions of judicial reforms in manifestos are nothing but an expression of the electorate to reform a system that impacts their daily lives. Otherwise, we would not have seen continuing mention of the judiciary in an otherwise political document. Keeping the current trends aside, it would be interesting to see how political parties and the judiciary react to the growing perception of judicial activism and overreach in political spheres and how these reflect in their promises to voters. 

(The Author is thankful to Pavit Paul George, Manushree Sarkar, Anushka Khadse, Nikhil Raju, Snithi Dilip and Evonne Christopher for their assistance)

To read this in the Hindi Click Here

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