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Keep them separated

The discharge of executive responsibilities by the judiciary is essentially unaccountable. This is anathema in a democracy, writes Sitaram Yechury.

india Updated: Oct 03, 2007 22:40 IST

Two recent pronouncements by the judiciary — one concerning the sentencing of mediapersons under charges of contempt of court, and the second declaring a bandh called by the DMK in Tamil Nadu on the Sethusamudram controversy as illegal, and the subsequent comments asking the Centre to dismiss the state government — have again brought to the fore issues concerning ‘judicial activism’. Since the details have been widely reported, we shall discuss the larger issue concerning the separation of powers in a modern parliamentary democracy.

French philosopher Charles de Montesquieu laid down a benchmark that continues to be the foundation of any modern democracy. He drew attention to the dangers inherent in the concentration of legislative, executive and the judicial powers in one authority. He stressed on the necessity of a concept of checks and balances in constitutional governance.

Many a modern Constitution, including ours, have incorporated this concept. As Chief Justice K.G. Balakrishnan notes, “The Constitution lays down the structure, defines the limits and demarcates the role and functions of every organ of the State, including the judiciary, and establishes norms for their inter-relationships, checks and balances.”

While working out the mechanics for the three wings to play a joint and participatory role, the Constitution defines the centrality of the will of the people. The Preamble defines this most eloquently by stating “We, the people of India” and “do hereby adopt, enact and give to ourselves this Constitution”. The eternal message is the sovereignty of the people and its primacy in our constitutional system.

Lok Sabha Speaker Somnath Chatterjee, himself an eminent jurist, notes: “The framers of our Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens through the process of judicial review, which gives the mandate to the judiciary to interpret the laws but, if I may humbly submit, not to make them, nor to lay down general norms of behaviour for the government or to decide upon public policy. The concept is ‘judicial review’ and not judicial activism.”

In the Constituent Assembly, Jawaharlal Nehru had stated: “No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament, representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way… ultimately the fact remains that the legislature must be supreme and must not be interfered with by the court of law in measures of social reform.”

The transgressing of the defined space by any of the organs is bound to create not merely friction, but gross misgovernance. The inadequacies of the executive, compounded by frequent disruptions of the legislature, negating the latter’s vigilance over the former, has often laid the basis for the judiciary to intervene. Justice Verma notes, “The deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive”, has left the judiciary pronouncing on matters that should be dealt with exclusively by the executive.

Instead of returning such matters to the domain of the executive, there are umpteen instances of the judiciary pronouncing orders. Justice Verma notes, “Judiciary has intervened to question a ‘mysterious car’ racing down Tughlak Road in Delhi, allotting a particular bungalow to a judge, specific bungalows for the judges pool, monkeys capering colonies to stray cattle on the street, cleaning public conveniences and levying congestion charges at peak hours at airports with heavy traffic, etc., under the threat of use of contempt power to enforce compliance of its orders.” We could add to this list: from nursery admissions to the air people breathe, use and misuse of ambulances, begging in public, use of subways, the nature of buses we board, the legality of construction in Delhi, size of speed-breakers on the roads, autorickshaw overcharging, enhancing of road fines, etc.

By declaring bandhs as illegal, the judiciary is creating a multiplicity of rights. It is laying the basis for conflict between rights of an individual and rights of a community. As Justice Anand notes, “The danger of judiciary creating a multiplicity of rights without the possibility of adequate enforcement will be counterproductive and undermine the credibility of the institution… it needs to be remembered that courts cannot run the government… the judiciary should act only as an alarm clock, not as a time-keeper. After ringing the bell, it should ensure that the executive has become alive to perform its duties.”

There is a serious issue involved here. The executive and the legislature, given their responsibility under the Constitution to manage public affairs, are accountable to the people. Accountability, in fact, differentiates democracy from other systems of governance. The discharge of executive responsibilities by any other organ, say the judiciary, is essentially unaccountable. This is anathema in a democracy. Further, once the judiciary gets involved in an issue that falls within the executive domain, it precludes the possibility of the legislature exercising its assigned role of ensuring executive accountability through effective legislative scrutiny.

Chatterjee asks a pertinent question: “In the absence of any procedure under any law made by Parliament for enforcement of orders made in the public interest litigation, relating to executive or legislative matters, can the courts enforce such orders by adopting novel methods like appointing monitoring committees, thus themselves entering into the arena, or by taking recourse to the jurisdiction in terrorem, namely the power to punish for contempt of court? I believe the nation is entitled to know the answers.”

On the issue of contempt, recollect a recent judgment delivered by a bench of the apex court headed by Justice R.V. Raveendran: “It should be remembered that exercise of such power results in eroding the confidence of the public rather than creating trust and faith in the judiciary.”

It is this trust and faith that the judiciary needs to further strengthen. Invoking the provision of contempt of court to silence critics of possible judicial misconduct would appear particularly indefensible.

While these are matters that need to be seriously debated, the efficacy of our justice delivery system needs to be strengthened. The large number of pending cases and the consequent agony and injustice heaped on people does not augur well for our country. The time has come for the country to seriously consider the constitution of a National Judicial Commission comprising representatives from the judiciary, the executive, the legislature and from the bar. This could deal with an entire range of issues, from the appointment and transfer of judges to ensuring judicial accountability.

Sitaram Yechury is MP, Rajya Sabha, and member, CPI(M) Politburo.