Increasing encroachment of executive powers by judiciary

Within a short span, Union minister Arun Jaitley severely criticised the judiciary for its alleged over-reach again cautioning it to have its own Lakshman Rekha and not take decisions that fall in the executive’s domain. Elaborating it further, he remarked that activism has to be blended with restraint.

Barely five days before that, on May 11 in the Rajya Sabha, he said that the judiciary is destroying the edifice of India’s legislature “step by step, brick by brick” and added that it is not in the interest of democracy.

Many Opposition leaders also shared Jaitley’s concern and voiced the opinion for unity among legislators to survive the alleged onslaught by the judiciary. Another Union Minister Nitin Gadkari went one step further and said, “Let judges quit and contest polls if they want our job.”

The sense of disquiet in the government as well as in the legislature is quite palpable. But it is not new; the discontent has been simmering for long. In recent decades, the judiciary has been accused of trenching upon areas that belong to other wings, and aggrandising its power and jurisdiction by novel interpretation of laws.

In recent decades, Parliament has witnessed rambunctious debates on the issue where members across party lines were vociferous in their criticism of the judiciary for its alleged interference with the functioning of the legislature and the executive.

On April 8, 2007, then prime minister Manmohan Singh told a conference of Chief Ministers and Chief Justices of high courts, “The dividing line between judicial activism and judicial overreach is a thin one. However, substituting mandamus with a takeover of the functions of another organ, may, at times, become a case of overreach.”

Sharing the dais with him, then Chief Justice K G Balakrishnan joined the issue: “The application of judicial review to determine the constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge, and the legislative and the executive branch. Such tension is natural and to some extent desirable.”

Justice Balakrishnan is right but this tension is desirable only to some extent. The way the apex court and even some high courts have been issuing directions to the government and the legislature gnaws at the very root of democratic structure precariously hanging on the principle of separation of powers.

Explaining the need for separation of powers, Baron de Montesquieu wrote that concentration of power in one hand leads to autocracy and becomes tyrannical. It will, doubtless, be dangerous if judges assume the power of the executive and that of the legislature by way of interpretation.

The Supreme Court literally legislated by laying down the procedure of appointment of judges by inventing the collegium system, an extra-constitutional body, and thus usurped the power of appointment of judges from the hands of the executive.

Pooh-poohing the mandate of the people, it struck down the 99th Constitutional Amendment Act which abrogated the collegium system; the bill was passed unanimously by Parliament and 20 state legislatures. Jaitley had rightly described it as the “tyranny of the unelected”. However, the government caved in subsequently.

Uttarakhand case
In the recent Uttarakhand case, the Supreme Court created a constitutional void for two hours by asking the Union government to lift the President’s rule for two hours for conducting the floor test. There was no government for the two hours in the state as there was neither state government nor the central rule. Only God knows who was holding the reins of government.

It is also flabbergasting whose trial of strength it was when the chief minister had not been reinstated. The court also decimated the institution of the Speaker by keeping him away from the floor test, replacing him with officers. It is in flagrant violation of Article 212 of the Constitution which reads:

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature, shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

An institution should not be thrown into desuetude just because some irregularities were allegedly committed. Reforms may be an urgent desideratum but denigrating it is worse. The Supreme Court got international opprobrium for its infamous judgment in the Habeas Corpus case which upheld the suspension of the right to life during the Emergency as constitutionally valid. Does it mean that the SC should have been disbanded?

There are other areas also into which the judiciary is making forays without any jurisdiction. Jaitley besought MPs to refrain from handing over taxation and budgetary powers to the judiciary. But the court has assumed even this power though the Constitution does not confer any such power to the judiciary.

The Green Court levied tax on commercial diesel vehicles passing through Delhi and the SC has upheld it despite Article 265 of the Constitution being categorical that no tax can be levied or collected without the authority of law. Here ‘law’ means the law made by the legislature.

In the words of Lord Simonds, judicial activism is “a naked usurpation of the legislative function under the thin guise of interpretation”. Jefferson believed that judicial activism reduces the Constitution into ‘mere wax in the hands of the judiciary, which they may twist and shape into any form they please’.

Jawaharlal Nehru also thundered in the Constituent Assembly: “No Supreme Court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community.”