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Thursday, January 20, 2022

That essential balance

What’s our democracy without its checks and balances?

Written by Mukul Mudgal |
April 22, 2011 1:55:18 am

Our Constitution is a complex and comprehensive document that elaborately sets out the checks and balances for the exercise of the three limbs of governance — Parliament,the government and the judiciary.

The Constitution was framed after elaborate discussions by eminent lawyers and public figures and took into account constitutional developments in various functioning democracies in the world. Consequently,the Constitution of India has ascribed separate and distinctive roles to the three facets of democracy. The legislature,that is Parliament,enacts legislation and oversees the functioning of the government and implementation of legislation through various parliamentary subcommittees. The executive,that is the government,is required to carry the legislative will of Parliament by giving practical effect to such legislation. The judiciary interprets the Constitution and the laws and ensures the organs of

the state function within their demarcated spheres.

In recent times,the media has also stepped onto the centrestage. While the media is not delineated in the constitutional scheme,due to the advent of advanced technology it has come to occupy a pivotal position in moulding public opinion. Its follow-up to reporting and what is called the espousal of a cause have often been criticised as a departure from the traditional,non-partisan role ascribed to and hitherto followed by the media. However,for the healthy functioning of democracy,an active media,in spite of some excesses and undue intrusions,is far more essential than a passive one.

The most debated issue in all democracies,however,has indeed been the stand-off between the judiciary and the executive. Recently,the CVC controversy and other issues of public interest had many observers criticising the so-called overreach of the judiciary. However,the aftermath of the judgment of the Supreme Court in the CVC case has nevertheless resulted in establishing a significant advancement in the development of our constitutional law by the enunciation of the principle of institutional integrity. This,in times to come,is going to reflect upon many more public institutions and will eventually pave the way for streamlining of appointment processes and producing better incumbents of high public offices,including the judiciary. For far too long,some of the important public positions have been usurped by occupants who may nominally be qualified,but essentially are unfit to hold such office,and are in such a position solely due to their proximity to those in power.

Nevertheless,the principle of separation of powers between the organs of the state requires a delicate balancing of the functioning of the three pillars of democracy. In the guise of public interest,the judiciary may face the spotlight due to what is perceived as its overreach into the domains of the executive and the legislature. Invariably,this has arisen when one wing of constitutional democracy is grossly negligent in performing,or does not perform,the responsibilities assigned to it under the Constitution. Thus the non-enforcement or partial enforcement of environmental laws led to the intervention of the judiciary in prodding the executive to give effect to the legislative intent for a cleaner environment. Similarly,forgotten sections of society such as prisoners,bonded labourers and casual labourers,who had the legislative mandate in their favour,have benefited as the court by its judicial activism has compelled the government to strictly ensure the performance of its public and statutory functions.

The checks and balances in a functioning and dynamic democracy cannot be rigidly demarcated but have to change occasionally to restore the effectuation of the legislative mandate which is the bulwark of a constitutional democracy.

Noteworthy legislation that benefited the entire citizenry,namely the Right to Information Act and the National Rural Employment Guarantee Act,have indeed been strengthened by judicial intervention. The judges of the high courts and the SC after some debate eventually declared their assets — the example has,however,not been emulated by the executive. Even parliamentarians,at the time of elections,are required to disclose their assets.

A commonly perceived difficulty in the field of public interest litigation is the establishment and functioning of non-statutory but quasi permanent committees by the court on issues such as environment and encroachments. Since no appeal lies against the findings of such committees,they tend to acquire absolute powers,being the direct link between the court and the affected parties. A review of the functioning of such committees,many of which are manned by persons of unimpeachable integrity,is nevertheless needed as absolute power tends to have an adverse effect. The cleaning of the environment indeed is a daunting task. The court cannot function without the work done by the committees and the amicus who are eminent counsel who voluntarily devote their time without any financial rewards or expectations. Nevertheless,some kind of systemic review has become essential so as not to affect the delicate balance of powers.

Another issue which has not received attention is the overreach of the executive consequent to the position of law settled by the SC in the A.K. Roy case. Thus Parliament may pass a significant legislation but the law laid down by A.K. Roy nevertheless permits the government to nullify the legislation either by simply not notifying it or by not framing rules under any such legislation to effectively render it stillborn. Many worthwhile legislative measures such as the amendments to the Industrial Disputes Act and the Rent Control Act have remained dormant as they have not been notified for extraneous and irrelevant considerations. The SC may consider whether the time has come to specify that all legislative enactments must be notified and made functional within a reasonable time not exceeding six months.

The SC needs to have a re-look at this position of law as a new House may not have the zeal to pursue a legislation enacted by the previous one. For an effective and balanced functioning of a successful and vibrant democracy it is thus absolutely essential that the delicate balance between the three pillars of democracy is maintained and any shift in the balance is transient and not permanent.

The writer is a former chief justice of the high court of Punjab & Haryana

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