As custodian of the constitution, the Supreme court and other courts are compelled to act against the executive, though there is a clear-cut demarcation of powers between the two. The landmark judgement in ‘Madhyamam Broadcasting Ltd Media One Headquarters v. Union of India and Others’ is not only of judicial but of political significance. It admonished the sealed cover practice of the government. In the Anoop Baranwal v. Union of India, the Supreme court took away the sole domain of the executive and directed the constitution of a committee comprising Chief Justice of India, the Prime Minister and the Leader of the Opposition Party to select the Election Commissioners, later to be appointed by the President. A Election Commission is the main pillar of democracy and is usually headed by bureaucrats loyal to the ruling party. It will tilt the balance. There have been consistent attempts to appoint their favourites as Election Commissioners. To curtail the Judicial interference in their appointments, the parliament has readied itself to pass a law to sidestep the Judiciary.
In the global context, populist autocracies try to crush the judiciary with their majoritarian impulse. In Israel, the present mass movement is predominantly against Prime Minister Benjamin Netanyahu’s move to meddle with the independence of the judiciary. In Bolivia, judges have been arbitrarily dismissed in the last few years. In Poland, by lowering the retirement age of judges, the regime sent out older judges and inducted new persons who are loyalists of the government. The executive in India delays making judicial appointments as suggested by the collegium.
However in India, the scenario is little different. The media one judgement is the recent past shows the judiciary’s effort to resist majoritarian overtones. The court has taken a counter majoritarian role, which is qualitatively different from the role that the Opposition is supposed to play.
In the Media One case, the court directly confronted the Centre, which unilaterally cancelled the licence issued to the television channel citing “national security” and directed it to renew the licence. It considered all the major doctrinal issues such as the right to fair hearing, proportionality standard and public interest claims and issued directives to the Centre in concrete terms.
Thus we need a constant struggle to safeguard the constitutional provisions. However, it depends on the correct judicial attitude of the judges whose integrity must be beyond the question of doubt. “Caesar’s wife must be above suspicion”.