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The three limbs, and their inter-relations

The media often proclaims, “Confrontation between Judiciary and Legislature.” In legislatures strong words are used oftener still:...

The media often proclaims, “Confrontation between Judiciary and Legislature.” In legislatures strong words are used oftener still: legislators are apt to claim that they are “sovereign”; and when judges suggest that this or that be done – even so simple a thing, and so manifestly necessary, as requiring candidates to list in their nomination form convictions and cases pending against them – they are apt to explode, “Who are those fellows to tell us what laws we should pass? We will not tolerate this interference.”

But the facts are more reassuring. The explosions in legislatures against judges have only put legislatures in the wrong. As for “confrontations” that the media so readily detects, and just as quickly forgets, the issue at hand has always been swiftly resolved – often with finesse and sophistication. True, the Executive and Legislature have on occasion attempted to curtail judicial review. The most persistent of these attempts has been the way laws have been stuffed into Schedule IX. The most notorious of these maneuvers was staged in 1975 when in one single sweep, and purely to divert attention from the real import of the 39th Amendment which was to put Mrs. Gandhi’s election beyond judicial scrutiny, 38 laws were shovelled overnight, and without any meaningful discussion into Schedule IX.

About that shovel, section 5 of the 39th Amendment, and the way those thirty eight Acts were put into Schedule IX in one day by Parliament and then the state legislatures, literally without consideration, H. M. Seervai was to record later, “I defy any lawyer, or a judge of the highest eminence, a man with fantastic speed in reading, to read a fraction of the Acts, in one day. Two or three of these Acts were read out in part in the Fundamental Rights Case, and the Judges had to scratch their heads to find out what several provisions meant. Surely the framers of our Constitution never intended that thirty eight Acts should be inserted in a Schedule and put beyond the challenge of Fundamental Rights by being passed without thought.” H. M. Seervai, “The Rule of Law,” The Seervai Legacy, Feroza Seervai (ed.) Universal, New Delhi, 2000, pp. 161-62. Notwithstanding that incomprehensibility, the Acts have remained in Schedule IX!

Such excesses apart, by and large the Executive and Legislature have not curtailed the ambit of judicial review. There is indeed an even more reassuring fact: whenever they have attempted to do so, and the judiciary has stood firm, they have had to pull back.

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Furthermore, both the Executive and Legislature have on occasion let go of their insistence that the Judiciary “stay within bounds”. As is well known, Legislatures have long insisted that they are the sole judges of their privileges: but on occasion so partisan have the actions of majorities that at that moment controlled the legislature concerned been, that intended victims have rushed to the courts for protection; the courts have taken the matter on board; and the legislatures have backed down. Some other sequences have been even more dramatic: having provided in Schedule X that the decision of the Speaker on anti-defection cases will be final and no appeal will lie with the courts, legislators have themselves sought refuge in courts against the rulings of Speakers; the courts have heard them, passed verdicts, and the legislatures have not protested.

Similarly, by and large the courts have also been loath to transgress into matters that fall within the province of the Executive and the Legislature. Whenever they have stepped forth to direct that the government do such and thus – for instance, in regard to environment – they have done so because the Executive has grossly and for years and years failed to do its duty. The complaint in such instances that lies is actually the opposite of “interference”. The complaint is that, having directed the Executive to attend to a problem, the courts, and that includes the Supreme Court, have not kept an eye on the matter to ensure that their orders were being obeyed.

For the fate of the Supreme Court’s directions on solid waste disposal in Delhi as an instance, see, “Demand, and file,” in Governance: and the sclerosis that has set in, ASA/Rupa, 2004, pp. 161-81.

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For the same reason, like most others I have wished on many occasions that the courts would set aside their rule of self-denial and actually delve into questions of substance also: e.g., on Governor’s Rule, on dissolution of Assemblies, the Supreme Court has had to hold that it will not examine whether the grounds on which the Governor recommended a course of action were adequate, that it will only ascertain whether he had any ground at all. All of us have wished from time to time that the courts would go deeper than that!

But these rules of self-denial, rules given a firm basis by the doctrine of Basic Structure, have in general stood us in good stead. They have contributed to keeping relations between the three limbs harmonious. The premise on which our Constitution has set up these three institutions is that each has a different dharma. Some tension between different limbs is a spur to creativity. Precisely because it has been assigned a different task, one limb will goad the other, one will lead the other to examine and re-examine its fixed positions, one will keep an eye on the other. Conversely, that tension becomes counter-productive when one institution does not realise that the dharma assigned to the other is just as indispensable to the proper functioning of the State: when the raging river, so to say, does not realise that without banks it would no longer survive as a river. The “Kumarmangalam thesis” was a glaring instance of such repudiation of our Constitutional scheme – the “thesis” that there should be a “committed Judiciary”. But an open society has its safeguards. It soon became obvious to what and to whom the proponents of that “thesis” planned to commit the Judiciary. And so discredited did its proponents as well as the “thesis” itself become that no one has talked of it for a quarter of a century.

In general, the dharma of the judiciary is to conserve, to be the dyke, to keep the Executive and the Legislature within the banks, to give pause, to provide occasions for second thoughts. Unfortunately, that dharma has been endangered by some judges themselves – by those who have sought to convert the Judiciary into an instrument of “social engineering”. One of them, even while he was at the Supreme Court, declared that he had joined the system to wreck it from within! Their project would have ruptured relations between the three limbs. It did not for two reasons, each of them the wrong reason.

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One, at the time they were flying high, these “social engineers” were in fact echoing what had become fashionable rhetoric in the political class. Hence, far from taking umbrage at their pronouncements, the politicians cheered the judges on, as the judges were cheering the politicians on. The politicians found the courts a convenience. Nor was it mere coincidence that this “social engineering” phase followed immediately upon the abdication that had tarred the Supreme Court during the Emergency – activist engineering, and the grandiloquent prose that went with it were a sort of compensatory production.

The second reason that the excesses of “social engineering” have not inflicted the degree of harm that they certainly had the potential to cause is sheer size: India is an ocean; it absorbs the consequences of many engineers.

But now, three developments warn us that unless we take urgent steps, relations between the three limbs will come under strain. In the alternate, the Judiciary will be so emasculated that it will no longer be able to perform the dharma for which it has been created under our Constitution. First, both the Executive and the Legislature are today in the thrall of populism. Worse, they woo narrower and narrower segments of the population. Worst, they woo these ever-narrower segments by stoking baser and baser passions – e.g., of caste; they woo them with promises that are more and more false, more and more extravagant.

Second, there has been an alarming deterioration in the quality of personnel in these two limbs: many in them do not have the acuity to see what the consequences will be of a step that they are taking under the calculation of the moment; some of them do not care. Third, even as the acumen and values of persons in these institutions have plummeted, in one case their notions of prerogative have swelled; and in the other, self-esteem has shrivelled. Legislators are more than ever swept up by the phrase, “But we are sovereign.” Earlier, we could look to the civil servants to be the countervailing influence of restraint. But they have become just ever so civil servants – they have come to conclude that their proper role is to be mere “procedural instruments” of politicians. The dyke of the judiciary, therefore, is all the more necessary today. But for it to be a dyke, the Judiciary must itself not fall prey to populist fashions. The record unfortunately shows that in many instances, the Judiciary has allowed itself to be swept by fashions. The examples are as numerous as they are easy to recall: the excesses that have been read into Articles 12, 14, 15/16, 21; into “natural justice” in regard to administrative law; the pronouncements on several matters that, for instance, impinge on running modern industrial units – recall a ruling like “Bonus is a deferred wage” which went way beyond what the Act itself provided.

In this context, two types of judgments can be distinguished:

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Those in regard to Articles 12, 14, 19 and 21 arose out of misuse of its powers or neglect of its duty by the Executive. In these judgments, the Judiciary was standing up to the Executive. It became our only bulwark against harassment and oppression, against arbitrariness. But even in these instances, two sorts of problems have arisen. Often the Judiciary chose not to see the circumstances in which the Executive had to function: the cases against policemen who fought and saved Punjab are an obvious example. On occasion, while the guidelines it laid down may have been necessary to curb a real evil – e.g., custodial violence – they had the unintended consequence is that they tied the hands of the Executive as it strained to counter an even greater evil: one has just to read DK Basu v. State of West Bengal, and one immediately sees how the prescriptions in it will completely incapacitate security personnel fighting a band of terrorists sent across by the Lashkar-e-Taiba. Similarly, the way the Supreme Court has gone on expanding the ambit of the “State” and “other authorities” under Article 12 has inflicted substantial handicaps on public sector enterprises. In such instances, the balance needs to be tilted in favour of the Executive.

In other instances of activism, the problem is far greater, and more difficult to remedy. In these, the Judiciary has joined up with the Executive and Legislature and waved them on as they rushed to satiate their worst populist instincts: some of the judgments on Articles 14, 15/16, 29/30 are ready examples, as are the judgments on reservations. The point is certainly not that “activism” per se is bad: all of us are for activism when it advances a cause that we believe is right! The disturbing aspect is that several of the judgments have advanced notions that seemed to have been preconceived. In many instances, it has been as if the judge had been waiting for a chance, and, the moment he got it, he let go. In some cases judgments have sought to advance a line of action by doing what I would have thought was unimaginable: they have sought to justify what they were about to do by invoking opportunist politicians. Recently, I was startled to read a judgment of the Supreme Court in which an extreme proposition is sought to be justified by invoking a person who has for decades been spreading poison, who has openly advocated violence, who till today applauds those who enabled the British to conquer India – to the effect that merit and efficiency are an “Aryan invention” to continue the suppression of the Scheduled Castes and Tribes! The Supreme Court says this? It does. It says this on the say-so of a man who has been preaching hatred for decades? Indeed, it does.

(To be concluded)

First published on: 10-11-2005 at 12:00:00 am
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