The Congress is busy diverting attention from its leader’s various faux pas in the US.

It has suggested that the Constitution was in danger because last week the Prime Minister visited the home of the Chief Justice for a private religious function.

This charge once again focused on an age-old problem, namely, what the proper relationship between the executive and the judiciary should be.

There are two aspects to the problem. One is the question of checks on executive power. The other is cooperation between executive and judiciary. Sometimes the former turns into an adversarial relationship and that’s what causes problems.

In the first quarter of the 17th century in England, a theory was propounded that judges should be “lions under the throne”. That is, they could eat everyone except the sovereign.

It’s been a well documented running battle since then. Suffice it to say that the relationship depends almost entirely on the personalities of the heads of the governments and the heads of the judiciaries. When both are insistent on a ‘my way or highway’ approach things get quite rocky.

But how about the relationships within the judiciary? It was best described in a book on the US Supreme Court by a journalist — never underestimate them — called Max Lerner. The book was called Nine Scorpions in a Bottle. I read it more than two decades ago. Its applicability is universal.

But in India we don’t do such research. The US, however, is different and its academic excellence is what sustains it as a world power.

Judges and judgments

So here I want to describe the findings of a research working paper published by the Boston-based National Bureau of Economic Research (NBER). The authors are Alma Cohen of Harvard University and Rajeev H. Dehejia of New York University. The paper is called “Judges Judging Judges: Partisanship and Politics in the Federal Circuit Courts of Appeals” (NBER Working Paper No. 32920).

They have analysed “how politicisation and polarisation influence judicial review within US Federal appellate courts.” They have looked at over 400,000 cases from 1985 to 2020 and found that “judges’ political alignment or misalignment with trial judges increasingly affect their decisions, particularly in the last two decades.” Wow!

They further find that “panels of Democratic judges are 6.9 percentage points more likely to reverse Republican trial judges compared to Democratic ones, whereas Republican panels are 3.6 percentage points less likely to reverse fellow Republican judges.”

While reviewing the literature they also found a study that said that increasingly even in the Supreme Court there were instances of divisions along party lines when a case was especially divisive. I suppose the latest such thing to happen was the reversal of Roe v Wade that reversed a 1973 decision that protected the right of a woman to have an abortion.

Judges v governments

The struggle between the executive and the judiciary led to one Indian Prime Minister in the mid-1970s to ask for a committed judiciary. Committed to her, that is.

Another Prime Minister in the mid-1950s brought the fourth amendment to the Indian constitution. It limited the power of judicial review in cases relating to compensation to be paid by the government when it acquired private property.

But the government isn’t the only problem before the judiciary. It is quite often at odds with itself as when the Supreme Court overturns its own decisions, thus leaving many important issues open. Arun Shourie had raised this question in 1996 in his book Courts and their Judgements. It’s a masterpiece on judicial inconsistency.

All the three works cited above prove just one point: the judiciary can be its own worst enemy, making life that much easier for the executive and sometimes more difficult for the citizen. It’s of little comfort that this happens everywhere, including the US.

Perhaps the best summing up of this fraught relationship was given by a former chief justice in the late 1960s who observed that while the executive was impatient, the judiciary had to be circumspect because it was its duty to implement the law, not change it.

But strong or ideological judges have often interpreted the law to suit their own preferences, especially when having to choose between the rights of citizens and their abridgement in the public interest. Indian case law is littered with these instances of ipse dixit or ’because I say so’. There’s no one to check this.