Powers of separation

Court observations on quota policy are a test for the system8217;s ability to handle sharp differences

The Supreme Court8217;s order in the case concerning OBC reservations seems to yet again set the stage for serious awkwardness in the relationship between the judiciary and other branches of government. Recent decisions, subjecting clemency to judicial review and passing orders with respect to demolitions in Delhi, might suggest a titanic struggle in the making: representatives of the people up against the guardians of the law. There are good conceptual reasons to think that some degree of tension is inherent in any constitutionalism. For instance, lawyers readily trot out a separation of powers doctrine. But if you ask the question, who decides when separation of powers has been breached, the answer turns out to be the judiciary. Thus rather than establishing the equality of the three branches, the separation doctrine inevitably ends up undermining itself by privileging the judiciary. The formal letter of the Constitution, and lawyerly casuistry, will not solve the inner conflict of constitutionalism. What is required for harmonious relations between branches of government is more self-reflection in each branch: this is a challenge for politics and legal culture, not one lawyers can solve.

In the face of obvious parliamentary disregard for the delicacy of legislation, the judiciary can retort rightly, as it did in Indra Sawhney II that 8220;unfortunately as a matter of political expediency governments tend to knowingly violate the Rule of Law and Constitution and pass on the buck to the courts to strike down the unconstitutional provisions. It would then become easy for the government to blame the Courts for striking down unconstitutional provisions.8221; Judges are correct in demanding legislation have constitutional integrity. For its part, the judiciary has also tied itself in knots. It would be otiose to deny that in the name of constitutional integrity, it frequently usurps executive functions. Its canons of interpretation pluck meanings out of thin air, making the whole project of constitutional integrity obscure, and often it has a misplaced sense of its own capacity to bring about change. While legislators will out of political compulsion play footloose with values and procedures, the answer cannot be indiscriminate judicial authority. How does this balance stack up in three recent cases?

The court8217;s claim that clemency be subject to judicial review is odd, to say the least. By its very nature clemency is discretionary and not the same thing as justice. Subjecting the grounds on which clemency is given to judicial review is tantamount to taking discretion away. The court8217;s intervention in Delhi demolition cases is a mixed bag. Admittedly, the executive has not done a good job of managing cities, but there is an element of hubris in supposing that the courts should take on this task. An analogy is often made with the CNG case. If the court can clean the air, why cannot it reorder land use? But this analogy is misplaced. In the CNG case the court, formally at least, used the device of continuing mandamus, enforcing the governments own recommendations. And enforcement was possible in the end because both branches became partners. In the demolitions case, the court is implicitly questioning Parliament8217;s right to legislate on land use; and it is underestimating the political economy implications of demolitions on livelihoods. The legislature may have provoked the court by self-abdication, but the court could have found a mechanism for the judiciary and legislature to cooperate in finding a credible and feasible solution to a messy problem, rather than simply overriding Parliament, and then having to relent somewhat at the prospect of imminent violence.

In the OBC case, the court has come into the legislative process in medias res. Even those of us sceptical of OBC reservations should worry. Constitutional integrity is about how a decision is arrived at, as much as it is about the content of the decision. The court is asking that a parliamentary committee report be placed before the court. If the report is opened before it is introduced in Parliament, a vital norm will have been breached; if it is not then it is not clear what the purpose is. The only appropriate modus vivendi now would be extending the deadline by which the report may be filed in court, so that the report is opened after Parliament.

The court is also preemptively trying to impose constitutional integrity on legislation that has not yet taken final shape by posing queries on three issues: the figure of 27 per cent, the manner in which the number of OBCs has been arrived at, and the issue of the creamy layer. Two of these issues are a product of the court8217;s own past interventions: 27 per cent is a residual since the court capped reservations at 50 per cent. The number of OBCs is a tricky question. The figure Mandal used has till now been accepted as default wisdom. The legislature could, with some justification, argue that it is responding to a reasonable interpretation of past judicial determination. As Arun Shourie argues convincingly in Falling Over Backwards, judicial doctrine on reservations has engendered as much lack of clarity in this area as anything the legislature has done. Whether what emerges from the court on this occasion is clarity over first principles or another ad hoc compromise remains to be seen.

The judiciary has unequivocally excluded the creamy layer in the past. But therein hangs a tale of the de facto limits of judicial power. The creamy layer provisions have often not been enforced, the court has not been able to punish anyone for flouting its orders, and judicial directives on reservations have easily been overturned by constitutional amendment. The recent judicial exasperation at the legislature should be seen in light of this history. And one has to pity the attorney-general8217;s office in this government for having to defend so many untenable constitutional cases. But the legislature should use this occasion not to grandstand but to bring some integrity to its own process; the judiciary for its part should not succumb to a jurisprudence of exasperation. History tells us that courts and legislatures can be conduits of law only when both are partners in upholding constitutional values. But partnership presupposes consensus, and a divided society makes the prospect of undivided government look bleak.

The writer is president, Centre for Policy Research, New Delhi