Bench above the kursi

To make matters further complicated, the right of Parliament to amend the Constitution was circumscribed by a decision of the Supreme Court in the Keshavananda Bharati case in 1973.

The Court had then ruled that there were certain unalterable provisions of the Constitution, which even an overwhelming majority of Parliament could not alter or amend. This is the ‘‘basic structure’’ doctrine, which was reviewed in 1975 but not changed.

In considering the relative boundaries of powers of the judiciary and the legislature, it is necessary to keep the above legal position in view. The whole controversy about separation of powers is really about where the dividing line is to be drawn. It is not about who is ‘‘supreme’’ or about who represents the ‘‘will of the people’’.

Both the judiciary and legislature are organs or agents of the state and, therefore, the people of India. Neither has unlimited powers under the Constitution.

Unfortunately, from a citizen’s point of view, the debate on the separation of powers in the media, and by political leaders, is highly confusing.

In addition to periodic declaration about the supremacy of Parliament, it has been argued that there is corruption in judiciary also, and that in the past courts have given several unjustifiable verdicts.

This is true, but irrelevant to the question of determining the dividing line on separation of powers between legislature and judiciary.

The only issue which deserves consideration is to determine what is best for safeguarding the freedom and interests of the people as a whole. I have no doubt that it is of paramount importance for India to have a court of last resort to decide on the legal validity of specific actions of the legislature or executive.

Courts are by no means full of noble sages, but they do provide an additional checkpost, as it were, to curb excesses. Let me explain.

Our representatives in the two Houses of Parliament are elected, directly or indirectly, by the people of India through elections, which are generally free and fair. In between elections, however, what happens in Parliament is largely determined by the government in power, which may consist of a single party with the requisite majority or a coalition of parties.

As long as the government enjoys a majority, Parliament is likely to do what it wants. Normally, all members are free to ask questions, raise issues of public importance, and pass laws after due consideration. However, a crucial point to note is that, from time to tim, what the Parliament may be asked to do is in the immediate electoral interest of the parties in power rather than the interest of the people as a whole. It is no accident that the political outcry about the judiciary exceeding its power becomes the loudest when an action taken by the legislature or the executive is of doubtful validity. This has happened from time to time — particularly in the early 1970s, and more recently in the context of indecisive electoral verdicts in Jharkhand, Goa and Bihar.

Thus, for example, in March 2005, following Supreme Court directions to the speaker of the Jharkhand assembly, an emergency meeting of Presiding Officers of Legislative Bodies expressed grave concern about the judiciary ‘‘transgressing into the independence of the parliamentary system of our country’’.

In this case, the Supreme Court directions had become necessary because of the speaker’s apparent partisan action in adjourning the assembly before the majority claimed by a particular coalition was tested on the floor. It was only after the assembly session was extended in response to the court’s directive that the petitioner was able to form the government.

In taking a view on relative powers, it is also necessary to consider certain important changes that have taken place in India’s political landscape in the past 15 years or so.

First, in the Centre as well as in several states, a coalition of parties constitutes a majority and forms the government. However, many of the parties in coalition are bitterly opposed to each other in some states (or at the Centre) where they are not parts of the ruling coalition.

Secondly, since 1989, the average tenure of the government in power at the Centre has been relatively short. There have been as many as six general elections and seven governments (not counting the present government).

An important consequence of indecisive electoral verdicts and short tenures has been that ideology and programmes have now become largely inconsequential. Any party is willing to combine with any other party for possible political or electoral gain.

Most parties now have one or two leaders who decide on party’s choice of candidates. The leader also decides whether to join a coalition and who would represent the party in government.

Coalitions, leaders and ministers may come and go, but when in power, nothing prevents them from imposing their will on Parliament, reverse policy decisions taken only a few months ago, and pass any law, or even the budget, by a voice vote without discussion.

Against this perspective, can there by any doubt that, on balance, the country is better off with the judiciary as an additional checkpoint on legality of actions taken by the legislature and the executive?

The recently adopted Right to Information Act makes the role of judiciary even more crucial in making government accountable to the people directly.

To fulfill the intent of the Constitution to give India a government ‘‘for the people’’, there is also need for introspection by all parties, including the opposition, on Parliament’s working in recent years. This must happen sooner rather than later.

The author is a Rajya Sabha MP, and former governor of the Reserve Bank of India