There is a distinction between ‘being controversial’ and ‘being involved in a controversy’. Is the relationship between judges and the government controversial? Or have they simply been drawn into controversies? India’s mild mannered prime minister has told the judges that they should not overreach themselves. Chief Justice Balakrishnan’s reply was both diplomatic as well as insightful in welcoming some degree of tension between the government and the courts. Perhaps this goes to the core of the inevitable polarity between the rule of law (of which the judges are custodians) and democracy (whom politicians represent). The people do not really figure in all this — even though both sides claim to represent the cause of “We the People”.

The tension between Parliament and the courts falls into three phases. Since 1950, judges and politicians have been embroiled in three major controversies. In Nehru’s time the controversy over property rights continued from 1951 to 1964. Faced with constitutional amendments, the Supreme Court backed down. In Mrs Gandhi’s first reign the controversies from 1967-1975 were over parliamentary sovereignty and other matters. The court refused to back down. In 1973, the court curtailed the power of amendment itself. In Mrs Gandhi’s second reign (1980-84), the court was a little more resilient and accommodative on constitutional amendments and the basic structure.

We are now in the midst of the third major battle between Parliament and the courts. This started in 1992 and continues till Justice Pasayat’s interim order of April 2007 and beyond. The sequence of events is important. In 1992, the Mandal decision allowed OBC quotas but not for promotions. Constitutional amendments in 1995 reversed the Supreme Court on accelerated seniority. Following the TMA Pai and Inamdar cases (2002-2005), a constitutional amendment in 2005 enabled reservation in private educational institutions.

... contd.