Kr Swarn Kishore Singh
Baron de Montesquieu in his book called “The Spirit of Laws” states that, “When the legislative and executive powers are united in the same person, or body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Also there is no liberty if the power of judging be not separated from legislative & executive powers”.
Recent controversy manufactured over the satirical couplet of Chief Justice of India, Justice TS Thakur over the Independence day speech of Prime Minister Modi grabbed many eyeballs as the media took the center-stage in propagating this discontent of judiciary over the non-serious and hostile manner executive handles them. The thing worth noting is that this dissatisfaction of the head of judiciary family was ranted more by those people who have a long record of going to extent of even abusing the verdicts of the Apex court and cursing the judiciary. Actually these people are still not able to forgive BJP for the verdict of April, 2014. Although BJP had tried their level best to pacify the scathe of these people by appointing the ever diplomatic and lenient Arun Jaitley as Minister for Information & Broadcasting earlier, but that did not help. By propagating one side of the issue aggressively the disgruntled Lutyens media restricted the sight of common people to view this issue in a broader prospective. There is something more attached to this exchange of statements between Modi Government and Chief Justice of India than what the media portrayed. There should not be any tussle or rift between two person who are sitting at the pinnacle of the system because that is not between two people but between two institutions on which the whole system significantly relies. This is just an exercise which involves churning of ideas of some brilliant and most fertile brains of the country who may be having different ideas but motives are always same i.e. continuous evolution as a nation. I will better analogize this with what we Hindus know by the name of Samudra Manthan and out of the manthan some good things will come out and then even poison will be churned out; we have to deal with them somehow.
As per Hindu belief, Bhagwad Purana contains the episode called Samudra Manthan; in which an ocean was churned by devas (the gods) and the asuras (the rakshas or the demons). A mountain namely Mandar Parvat was used as churning rod and the snake, Vasuki who abides in the neck of Lord Shiva became the churning rope. But sooner the churning started, the mountain stared to sink, then Lord Vishnu in the form of turtle Kurma supported the mountain and balanced the process of churning. And when the ocean was churned; a lot of good and bad things were churned out. But at last, when this episode ended everything was balanced and the system was stabilized.
In this matter as well the bone of contention was National Judicial Appointments Commission Bill. The day NJAC was declared as void being unconstitutional, the gaps started to appear. Here the NJAC bill is the mountain which is used to churn the Samudra, the ocean. And everyone has a role in this episode; we need someone to act as turtle, Kurma to balance this process, someone to be Lord Shiva to drink the poison “halahala” so that rest don’t face the brunt, someone to be Mohini to ensure that the right people prevail. Mind you, there will be a Rahu-ketu as well.
Actually the grey area which needs proper definition is the doctrine of “separation of powers”. There are three organs which represent three different methodologies and manners of expression of the will of the people. These are legislative, executive and judicial functions and consequently there is legislature, executive and judiciary to dispense their respective responsibilities and functions in the government. The legislature makes laws, executive enforces them and the judiciary applies them to specific matters which originate out of breach of law. But the real problem is that the every organ has a strange tendency of overlapping the sphere of working of other and sometimes even intruding others turf.
In the constitution of United States of America; Art I vests the legislative powers in the Congress, Art II vests executive powers in the President and Art. III vests the judicial powers in the Supreme Court. Also in Indian constitution there is an explicit mention of vesting of executive powers of union and state in the President [Art. 53(1)] and the governor [Art. 154(1)] respectively. But as far as vesting of judicial and executive powers is concerned, there is no corresponding specific provision. Only place where the constitution talks about separation of power explicitly is Art. 50; which talks about separation of judiciary from executive; ironically this article is part of directive principles of state policy, which is not enforceable. Hence it is not even clearly defined in our constitution that which is the final legislating body. The dilemma and the height of intrusion in each others sphere reaches a peak when under the veil of delegated legislations, even executive is empowered to legislate; it comes under the name of ordinance in India.
Prima facie our constitution seems to be based upon the doctrine of separation of powers but there are a lot of fissures in it. This doctrine calls for independence of all three organs i.e. legislature, executive and judiciary; but India being a parliamentary democracy this doctrine can not be adhered to in-toto. And there is no country in the world where this doctrine is completely adhered to; even in USA, which is considered as the best example of separation of power, the treaties signed by the President aren’t enforceable unless passed by the Senate. In India, every organ is independent with certain restrictions which can be given the nomenclature of checks and balance.
The National Judicial Appointments Commission Bill was passed by both the houses of Parliament with an overwhelming majority. It was supposedly meant as a legislation which could have brought some better changes to the mechanism with which the judges are appointed but when the highest judicial authority in the country has decided it otherwise, the buck should stop there. But the manner in which the present government is taking this issue to their nose by recommending a Memorandum of Procedure, which is a sort of mini-NJAC would make the situation even worse. The government should get convinced that since the Apex Court has decided such; hence we as a system are not ready for this now.
The manner in which separation of powers is defined in India is pretty confusing. At one time, interference of executive in appointment of judges is against the principle of separation of power and independence of judiciary because this exercise is purely related to judiciary; but immediately after that, the judiciary directs the executive to keep a particular amount for a particular objective in budget, which is purely executive in nature. The hon’ble Supreme Court had directed the union of India to earmark a separate head as ‘drought fund’ which should be used for relief in drought hit areas in the budget. Hence separation of powers is a bit too complex a subject and warrants re-thinking. The principle of checks and balance looks like a principle of checks only as every organ is desperately trying to restrict and put a check on the other, hence there is no balance. Infact the checks are used with a very hostile view to expose the skeleton in the cupboard style. The process of checks and balance is used as a process to stultify the other. One perfect example of this mutual vilification was seen when the legislature passed RTI Act and Supreme Court gave itself exclusion. And on the other side executive too gives a cold shoulder to judiciary by implicitly denying to give effect to the orders of Supreme Court by virtue of which two judges of Delhi High Court were transferred. Supreme Court ordered the transfers in February 2016 and it is running September, the centre government has not cleared their transfers yet. I would like to quote Bhagwad Gita here;
“Whatever action is performed by a great man, common men follow in his footsteps and whatever standards he sets by exemplary acts, all the world pursues” ( Chapter 3 Verse 21).
Some senior advocates analogized this situation with the manner Indira Gandhi treated judiciary; with due respect, I must say that those were different times and the level of public scrutiny has increased manifold. There is no need to exaggerate this issue. This is only a clash of ideas, which will surely be worked out very soon. Ideally executive needs to be obsequious towards judiciary and in turn judiciary should be respectful towards executive and legislature with no space for sly or stealth.And I believe it is going on with some stray exceptions….
(The author is a practicing advocate in Supreme Court of India and a political and legal analyst)
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