TL;DR If you like drama, go to the third option, third bullet directly.
The government has three options usually. Remember these are not watertight options and there are numerous ways where each organ of the State can outmaneuver the other.
- Pay heed to the Supreme Court’s instruction and implement their suggestion. Remember an instruction is a thin line away from an order or decree. In case of an order, the government has no other option than to obey the court. This is necessary because a government that has been sworn allegiance to the constitution has to respect the institutions of the constitution. The executive always has the option of doing a half-hearted job, in which case practically the court can do nothing much. The court will see to it that it’s orders are complied to, which if not done, will result in consequences to the bureaucracy. Some examples of court taking steps to see that law and order are maintained are here:-
Satisfied with Usmanis reply, SC stays high court summons
Delhi court summons Kejriwal, Sisodia for protest at Rail Bhavan last year
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Hammer some sense into the court on why it is not a practical idea, Appeal to the court and ask for more time etc. This was on display following the National Green Tribunal banning the entry of diesel trucks into Delhi.
Diesel ban: after outcry, NGT gives 2 weeks, govt wants 6 months -
Nullify the order by bringing in legislation. This is the most thrilling of scenarios for a political observer. A battle between the judiciary and executive is a lopsided one usually, because it is easy for the judiciary to pin accountability. For example, it can summon and punish the chief secretary for not complying with its orders. However, once battle lines are drawn between the legislature and judiciary, it is a whole different thing. Let’s see why.
The legislature v Judiciary
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The legislature is powerful to make laws (and amendments to constitution) as long as it doesn’t violate the basic structure. The judiciary is powerful to declare a law null and void if a law (or constitutional amendment) affects the basic structure. If there is a conflict ensues between the two, there is a constitutional deadlock, a condition which our constitution has not specified how to deal with.
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The conduct and speech of Members of legislature are not justiciable and judiciary has no control over these aspects. Judical conduct cannot be discussed (except in case of impeachment of a judge) by the legislatures too (judgements can be). Again almost equal powers here.
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Both can summon, order arrest, prosecute for contempt etc. This can lead to very interesting scenarios. Imagine a situation where a person ordered to be imprisoned by the legislature was to be set free by the court. Direct conflict will ensue. Such a situation has already happened in India. Keshav Singh vs Speaker, Legislative Assembly … on 10 March, 1965 . The legislature issued warrants to arrest the judges who ordered that Legislature’s order to arrest Mr. Keshav Singh need not be carried out. Speak of drama of the highest order.
In short, how such deadlocks will play out will depend a lot on the power of the people behind such institutions. Remember the time when the court cowed down before the persona of Ms. Indira Gandhi? There probably was no judge who was brave enough to stand up to her. The emergency stands testimony to that. The court, a guarantor of the fundamental rights, could not even stand up for Article 21, the Right to Life. It had only a knee jerk judgement which till date remains a blot on the Indian Judiciary.
Today’s governments are formed with much lesser majority than in the days of Ms. Gandhi. Modi’s government, though has simple majority, is a minority in the Rajya Sabha. Even in Lok Sabha, it needs a 2/3rd majority for a major show down. However, if the political class decides to stand up to the judicial activism (encroachment?) into its domain, then we will see one of the most historic battles between ideas and institutions. It will be almost like the debate on who will win in a battle between Superman and Batman.
PS: All SC instructions are pretty serious ones. No joking around there :)