Logo

Logo

Milords’ Indulgence

Democracy will be strengthened if stakeholders use the opportunity presented by the current crisis to address the imbalance in judiciary-executive relations, argues Ashok Kapur.

Milords’ Indulgence

The Supreme Court of India. (Photo: SNS)

The Chinese language has the same word for crisis as opportunity. It is a wise linguistic connotation that brackets crisis with a challenge, to turn it into a possible advantage, so that hopelessness may turn into hope, and equip humans to cope with equanimity and move forward.

The Chinese traditional belief encompasses a wisdom, like the Indian that hope should not die, or better still that it should not be allowed to die.

The said thought springs to mind in the face of the current crisis that has engulfed our Supreme Court, witness the unprecedented spectacle of four senior-most judges expressing an open vote of ‘no confidence’ in their Chief.

Advertisement

Indubitably, it is an unprecedented crisis not only in the history of Indian democracy but in the working of established democracies globally.

It is highly embarrassing for the nation, considering that our Supreme Court is the youngest such institution in the democratic world, a gift of the finest written Constitution in the world.

At the very outset, it must be stated that the apex court is a highly respected institution that continues to enjoy the full trust and confidence of the common man in India for its impartiality and as an impregnable shield against the omnipotent modern state.

Were it not for the highly independent judiciary which is not swayed by the momentary political winds that buffet other institutions, say the independent civil service, the common man would have voted for Army rule by now.

It is fervently to be hoped that the crisis would be resolved soon, to the satisfaction of all the stakeholders, especially some active members of the Bar who have been champions for long of greater accountability of the Judiciary.

As any number of modern jurists have argued, accountability and independence are not antithetical. Indeed, the two go hand-in-hand and the one only strengthens the other. An independent judge has nothing to fear if he is fully accountable for his conduct.

Which brings us to the issue of the authority or the institution that will resolve the crisis, to the satisfaction of all concerned. In this respect, the Executive in India has come out with flying colours.

Ever since the crisis erupted openly, it has taken the balanced and correct stand that the issue is an internal matter of the Higher Judiciary which must be resolved by the Judiciary itself, without any outside intervention, particularly the Government. It has fully respected the ‘separation of powers’, part of the ‘basic structure’ of the Constitution.

Not that the Executive had no temptation to intervene. There is a deepening Judicial entry into the Executive domain, often termed as “judicial overreach”.

This has been happening for long, ever since the advent of the Public Interest Litigation phenomenon more than three decades ago. The issue of “judicial overreach” has also figured in Parliament.

Senior and respected members of the Executive, cutting across party affiliation have repeatedly voiced this concern publicly. Needless to mention, the ‘overreach’ by the Higher Judiciary is hampering the smooth functioning of the Executive.

The Judicial entry into the Executive domain has only deepened with time over all these decades. The irony of it is all the more tragic if one were to recall that it was the Supreme Court itself that had enshrined permanently in the statute book the concept of “separation of powers” among the three organs of the State – the judiciary, the executive and the Parliament more than four decades ago.

It has explicitly laid down that each organ is independent of the other two, and that there should be no encroachment in their respective domains by the others. It is now a part of the immutable ‘basic structure’ of the Constitution.

Never mind. The Judicial entry into the Executive domain continues to deepen. Take the ongoing case of the sealing drive launched by the municipal authorities in the Capital under the directions of the apex court.

The Court has also set up a “monitoring committee” to enforce its orders. The said committee is armed with powers to enforce the directions of the Court.

It comprises a retired Army General, a retired official with no training in magisterial functions and a trained magistrate.

Several Constitutional issues arise in this context. The Court is virtually acting as a licensing authority, a function reserved explicitly for the executive. The Constitution does not vest any licensing function with the judiciary.

Indeed, the relevant Law Commission that examined the issue of ‘separation of powers’, pursuant to the Constitutional directive of Article 50 specifically reserved these powers for executive magistrates, to the exclusion of judicial magistrates.

The Criminal Code of 1860, the oldest statute in India specifically provides for it. The said statute was ratified by all the States after the Constitution of India was introduced in 1950.

The Court, while assuming licensing functions has armed itself with the attendant ‘police powers’ to enforce municipal bye-laws, a part of the ‘local self-government’, reserved exclusively for the States.

The Constitution entrusts ‘police powers’ to the permanent executive, not to the judiciary. The Constitutional logic is simple. The permanent executive is accountable both to the legislature as well as the executive, whereas the judiciary is accountable to none.

‘Police powers’ with the accountable executive ensures checks against its misuse whereas the same cannot be said about police powers with an unaccountable judiciary.

Justice H.R. Khanna was one of the greatest judges of the Supreme Court who preferred to resign his job rather than compromise on Constitutional principles.

Long before the apex court expanded the scope of PIL to cover even matters executive, he was of the considered interpretation that the ‘separation of powers’ was a sacrosanct Constitutional principle.

Any deviation from it would distort the Constitutional scheme and dilute the rule of law. Indeed, the relevant provision in the Constitution (Article 50) has been described by the Court itself as the “conscience of the Constitution.”

In the memorable words of Justice Khanna: “Special responsibility devolves upon the judges to avoid an over-activist role and to ensure that they do not trespass upon the spheres earmarked for the other wings of the state.

In such peculiar situations, the appeal has to be to the legislature or the executive, and the judges ought not to be seduced by quixotic temptation to set right every fancied wrong paraded before them. Judiciary is not in a position to provide solution for every problem.”

The composition of the ‘monitoring committee’ set up by the apex court leaves much to be desired. A former Army General as an enforcement authority in civil matters is not in consonance with the basic norms of democratic functioning.

‘A democracy is that form of government which is run by the civil service, to the exclusion of the armed services of the state from day-to-day governance.’

An Army General enforcing civil laws sends a dangerous signal to the common man that maybe civilian governance is failing, and Army is the solution to India’s “problems”. A recent survey by a reputed international organization has revealed that more than fifty per cent of the populace feels so!

The position is no better in the states where some of the High Courts have been admitting PILs on matters that fall in the executive domain. Recently, the Punjab and Haryana High Court annulled the appointment of a senior adviser to the Chief Minister.

If a popularly elected minister cannot appoint a civilian adviser of his choice, then something must be seriously remiss in the working of Indian democracy. Such matters fall squarely within the domain of the Executive, it must be said with respect.

The PIL, as originally conceptualised and entertained was meant to enable the weaker and the poorer sections to approach even the apex court to enforce their Fundamental Rights, in case they are not able to do so otherwise.

Over the years, the PIL has expanded to cover purely executive functions. As the Judiciary continued to expand its scope and reach, a warning was sounded by none other than a former Chief Justice of India: “Care must be taken to ensure that PIL does not deteriorate into political, personal or private interest litigation.”

The warning has been largely unheeded. Mr. Fali Nariman, arguably one of India’s top jurists has put it most aptly: “The framers of the Constitution had not seen the hyperactive judiciary that we have today: a judiciary that tells the government when and how to distribute excess food; what crops to grow and what not to grow, which economic projects are good for the country and which are not; what fuel should be used in the engines of our vehicles etc.” He could as well have added – which civilian officer to post where.

Partly as a result of what has been termed as ‘judicial overreach’, arrears of pending cases are mounting by the day not only in the apex court but also in the High Courts and the lower courts.

The argument is often advanced that the executive is slow in filling up vacancies in the various courts. It misses the point that it will address only a part of the problem.

Assuming that the executive was to fill up all the vacant posts at any given point of time, there is no guarantee that the judiciary will not expand its jurisdiction still deeper into the executive domain.

Which brings us to the question of judicial accountability. The recent incident of the four senior-most judges has brought to light some other aspects of the functioning of the apex court that can bring no credit to the famed independent judiciary of India.

Even earlier, some Chief Justices of India were constituting what has been termed as “preferential benches” to predetermine the final verdict, according to Justice P.B. Sawant, himself a former distinguished judge of the Supreme Court. The lid is finally off. It was always known, but not talked openly, for fear of contempt of Court.

Another argument is often advanced in context. The phenomenon of deepening inroads is often sought to be justified on the ground of ‘executive failure’. It is repeated time and again that if the executive is seen to be failing in its duties, the judiciary must step in.

Carrying this reasoning to its logical end, does this imply that if the judiciary is failing in its duties, the executive must step in? In the present case, the executive has emerged with flying colours by showing the necessary restraint.

Justice Krishna Iyer, another eminent jurist of independent India and a former judge of the Supreme Court has approvingly quoted from the U.S. experience: “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself. No public institution…….. can be above public debate.”

The present crisis affords an opportunity to all the stakeholders to rectify the Executive-Judiciary imbalance of powers so that each of the institutions functions within its domain. It can only strengthen democracy in India.

The experience in other established democracies is similar, say that of the US. It is, after all not only the oldest Constitutional democracy in the world but our Federal Constitution is largely based on it. We must learn from them about their experience of the working of the various organs of a modern democratic federation.

Justice William O. Douglas, one of the greatest judges of the US Supreme Court had visited India in the early 1950s to share his wisdom about the working of their apex court. He said: “Justice Louis Brandeis (another great judge of the US Supreme Court) used to say that what the Court did not do was often more important than what it did do.

This was his way of emphasizing how important it was for cases to be carefully screened …. to make sure that the question was actually and unmistakably presented, that it was really necessary for the Court to make a pronouncement.”

He continued: “There is wisdom in that course. The Court is only one branch of Government. The members of the other (two) branches also take an oath to support and defend the Constitution.

To pronounce that the other two branches have acted unconstitutionally is a grave and solemn matter. For administrators, like judges are usually high-minded men and women. They too have a sense of constitutional duty and a notion of fair play.”

Arguably, the last word on the subject was said by Justice HR Khanna: “We in the world of law have always decried executive arbitrariness. Much worse than executive arbitrariness is judicial arbitrariness.”

The writer is a retired IAS officer and a member of the International Academy of Law.

Advertisement