Firstpost: New Delhi: Wednesday,
May 25, 2016.
That there
has been a kind of a turf war between the current Executive and the Judiciary
is no secret but the Executive seems to have been feeling rather strongly
singed by the recent developments, particularly in Uttarakhand. The Legislature
also seemed to have been drawn into this ruckus which appears to be one-sided,
at least in the public domain since the Judiciary usually speaks only through
its judgments.
The
Uttarakhand episode raised many questions. One such was asked in an editorial:
“Was the handholding (of the Uttarakhand Assembly by the Supreme Court)
necessary?” The editorial itself provided a kind of a prudent and even-handed
answer. It cautioned both parties in saying “But even as the Central government
reflects on the damage it has done to its own reputation, the court must also
ask itself whether it could have been more mindful of its own boundaries in
Uttarakhand.”
Possibly
coincidentally, the very next day almost the entire media was splashed by a
headline which can justifiably be called sensational. It said “Judiciary is
destroying legislature brick by brick: Arun Jaitley.” Elaborating his stand,
the Finance Minister is reported to have said, inter alia, “With the manner in
which encroachment of legislative and executive authority by India's judiciary
is taking place…”
Just five
days later, on 16 May, came another news item quoting the Finance Minister as
saying that “Judiciary must draw its own ‘Lakshman rekha'. This is what the
news report said, “Judicial review is legitimate domain of judiciary but then
the Lakshman rekha has to be drawn by all the institutions themselves. Lakshman
rekha is very vital,” the finance minister said, asserting that “the executive
decisions are to be taken by the executive and not the judiciary.”
Statement
such as these, made by arguably the second most important minister in the
cabinet after the Prime Minister, who is also considered to be a legal and
constitutional luminary, and on the floor of the Parliament, have to be taken
very seriously.
The issue
whether the judiciary is encroaching on the authority of the legislature and
the executive, is inseparable from the doctrines of “separation of powers” and
“checks and balances”, enunciated by the French political philosopher,
Montesquieu. ‘Separation of powers' obviously means that the three ‘pillars' of
the ‘State', the Legislature, the Executive, and the Judiciary, operate in
separate domains and usually do not, and should not, interfere in one another's
domain. This exercise of powers, however, is not totally unfettered. It is
accompanied by the system of ‘checks and balances' under which each ‘pillar'
acts as a check on the exercise of powers by the other two pillars, and is
expected, and required, to provide a balance if any of the other two do not, or
are not able to, exercise their powers in accordance with the supreme law of
the land, the Constitution.
The number of
times judiciary has refrained from pronouncing on legislative issues is far
more than the number that they have done so. And whenever they have done so,
has been by following the principle of “filling in the gap in legislation, till
such time as the legislature acts on it”. As the Supreme Court said in the
Vineet Narain case, “In a catena of decisions of this Court, this power has
been recognised and exercised, if need be, by issuing necessary directions to
fill the vacuum till such time the legislature steps in to cover the gap or the
executive discharges its role.” More specifically, the judiciary does so under
three conditions: (a) there is a ‘gap in legislation', (b) the legislature has
not had the time or inclination to fill it, and (c) most importantly, public
interest is suffering. When these three conditions are satisfied, it is said
that “the judiciary has the right, nay, a duty, to fill the gap in legislation
till the legislature decides to act on it.”
Based on
personal experience of the last 15 years, some such instances are worth
mentioning. When a High Court ruled that candidates contesting elections to
Parliament and State Assemblies must disclose criminal cases pending against
them, their financial assets and liabilities, and their educational
qualifications, the government of the day appealed to the Supreme Court(SC)
against that decision. When the SC upheld that decision, the government issued
an Ordinance to amend the Representation of the People Act to prevent the
disclosure. The Ordinance was converted in an Act by the Parliament
unanimously. It was then left to the SC to declare that amendment
unconstitutional and null and void. That is how the affidavits which are filed
along with nomination papers came into being in 2003.
Innovatively,
one of the responses of politicians was to leave uncomfortable columns in the
affidavits blank. It took another decision by the SC to make candidates fill
all columns of the affidavit. Interestingly, it is these same affidavits that
are giving anxious moments to some politicians about their educational
qualifications.
A recent
example is the Foreign Contributions Regulation Act (FCRA). When two of the
leading political parties are found guilty of violating the FCRA by a High
Court, attempts are made to amend the FCRA to let them off the hook. When those
attempts do not succeed, the amendment is done by including it in the Finance
Bill.
It seems the
political establishment, in the form of political parties, are not comfortable
following the laws that they themselves have passed in the Parliament, often
unanimously. And when they are required to follow the law, by the judiciary, at
the request of concerned citisens, their standard response seems to be to amend
the law that they find inconvenient.
The Right to
Information Act (RTI) is yet another example. When the highest statutory
authority in the country to implement the RTI Act, the Central Information
Commission (CIC), says that six national political parties satisfy the
requirements given in the Act under the definition of a public authority, and
therefore these six parties are public authorities under the RTI Act, what do these
six main political parties do? They openly defy the CIC's decision! When the
matter goes to the SC, the Union of India is the first to respond to say that
RTI should not apply to political parties.
With the RTI
Act having been passed by the Parliament unanimously, one has to wonder who is
destroying the authority of the legislature!
And in the
case of Uttarakhand, did the judiciary take suo motu cognisance of the matter
or did someone approach the judiciary?
The lesson
that seems to have been taken from the Uttarakhand episode it to rein in the
judiciary by creating public opinion to the effect that the judiciary is
over-stepping its limits and is preventing the executive from doing its work.
That this lesson is perverse should be clear from the above examples which
amply illustrate that the judiciary steps in to fill the gap in legislation
when the executive and the legislature either ignore or attempt to harm public
interest while trying to serve the narrow and partisan interests of the political
class.
Therefore,
what is failing the country is not the judiciary but the partisan politics of
the entire political establishment. It is the political parties who have
rendered the legislatures irrelevant by constantly disrupting it. This
denigration of Parliament has been become more obvious since 2013.
The lesson
that needs to be learnt from Uttarakhand is for political parties to mend their
ways of working. Unless that happens, not only the legislature but the entire
architecture of democracy will be destroyed. And in that case, ‘who is to
blame' will become irrelevant.
Instead of
lecturing the judiciary to draw a Lakshman Rekha, it is for the political class
to get out of the rekha of political partisanship and start working in the
national interest. That is the only way the edifice of an effectively
functioning democracy can be built brick by brick.
The author is
former professor, Dean, and Director In-charge of Indian Institute of
Management, Ahmedabad. Views are personal.
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