The Prime Minster of India, Mr. Narendra Modi, invited the top judges of the country and the Chief Ministers of the states to his official residence for a dinner. The judges accepted the invitation and dined with the Prime Minister.
This is the first time in Indian history that a Prime Minister has resorted to “dinner diplomacy”; and the Judiciary conceded. By invitation, the Prime Minister, and through acceptance, the senior judges have breached an important precedent. There is no statutory prohibition in India against Indian judges closely interacting with the Executive. Yet, so far, the judges have stayed away from interacting this closely with the Prime Minister’s Office. Now, if the state Chief Ministers were to follow this practise, inviting the lower judiciary for lunch or dinner, the lower court judges have the example of their seniors to follow.
The Prime Minister, while being the guardian of the Constitution, is also by the nature of his office, a litigant before the court. In mature jurisdictions, the judiciary maintains distance from all state offices including that of the Prime Minister or the Executive President. This is because judges, from time to time, will be called upon to decide the merits of executive actions. Due to this, maintaining distance between the two is fundamental for the independence and impartiality of the judiciary.
The decision to accept a judge’s vocation is also a resolution to isolate oneself from the “pulls and pressures of the cosmos.” In practice, this is reflected in finite gestures. A document to be considered by the presiding judge is always filed at the registry, or handed over to the bench clerk in open court and not to the judge directly. In jurisdictions where independence and transparency of the judiciary and judicial conduct are held paramount, judges take extra effort to ensure that their conduct, express or implied, does not portray a distrustful image.
Unfortunately, today the Chief Justice of India has had to defend the independence of the institution he leads, He responded to a remark of the Prime Minister by making the statement: “Indian judges were independent and will remain so.”
Just prior to the dinner, in a speech delivered amongst gathered judges on the invitation of the Chief Justice, the Prime Minister had accused Indian judges of appearing to be “threatened by five-star social activists”.
The Chief Justice also had to defend his decision to organise a meeting of judges during national holidays, when one of his brother judges refused to attend because the meeting fell on a religious holiday. The Chief Justice had to defend his decision to go ahead with the meeting, with the statement that the decision to hold the meeting, and a fellow judge’s choice not to attend, was a matter of “internal family affairs of the judiciary.” The Chief Justice’s position is alarming; by his statement he has reduced a foundational constitutional guarantee into a filial affair within the Judiciary.
Today, India has a right-wing government that takes extra effort to decide what Indians should not eat when energy should be better-spent ensuring food security to 60% of its malnourished population. For religious reasons, it attempts to ensure, by law, the safety of cattle that people abandon on the streets, rather than devote adequate time and resources to secure the safety of the people of this great nation. The government tinkers wherever possible to foment religious hatred. The Prime Minister, who is directly responsible for a communal carnage that resulted in the death of over 2,000 persons within 72 hours, and rendered thousands homeless and fearful, heads this government.
Unfortunately, India’s judges have decided to dine with the person whom they might have to tomorrow hold responsible for the murder of 2,000 persons under his protection. This is indicative of the fast erosion of India’s judicial independence.
It is this erosion of independence that the country should be wary about.
