Courts cannot perform executive function: Jaitley on judiciary

 Drawing the line between judiciary and executive, Finance Minister Arun Jaitley today said courts cannot perform the functions of executive and the independence of the two will have to strictly maintained.

Jaitley said if executive fails to perform its function, courts can direct it to do so but it cannot take over the executive function.

Speaking at the 'Indian of the Year 2015' awards of CNN News 18, he said if the judiciary fails to act, the executive cannot take up that role on the plea that there are mounting pending cases. Similarly, courts also cannot take over executive function.

"Let's first of all be clear about two basic facts. Fact one, independence of judiciary is certainly required and must be maintained at all cost. Fact two, judiciary unquestionably has the power of judicial review. I don't think anybody has power to dispute that. It is essential for democracy," he said.

Stating that the argument that judiciary steps in when executive does not act was a "questionable proposition", he said, "when the executive does not act judiciary can tell and direct the executive to act. But the judiciary cannot perform executive function. Executive function has to be performed by executives".

Jaitley, who also holds the charge of Information and Broadcasting Ministry, said just as independence of judiciary was essential, so was separation of powers.

"The Parliamentary function has to be performed by Parliament, nobody else can pass or approve a Budget. The executive function has to be performed by the executives. Courts cannot perform an executive function. It can direct the executive to perform its function, if it is not acting," he said.

Jaitley's comments came close on the heels of Chief Justice of India T S Thakur asserting that judiciary intervened only when the executive failed in its constitutional duties.

The CJI had also said, "the government should do its job instead of hurling accusations and that the people turn to the courts only after they are let down by the executive."

The Minister said the executive and judiciary were two "strict compartments" whose independence has to be maintained.

"Let's look at the argument the other way. If the judiciary fails to act and somebody in the executive then says that judiciary is not acting, the arrears of cases are mounting up, we will have an alternate mechanism. The answer is no. Therefore these are strict compartments whose independence has to be maintained," Jaitley said.

He cited the example of mounting bad debt or NPAs with PSU banks asking if the issue should be resolved by banks or courts.

"I will give you a direct example which we are dealing with. We have a legitimate problem today of bank NPAs (bad debt). Is it to be handled by banks or handled by the courts? And if it goes to the courts, those in charge of executive powers, that is the banking sector, will say I will now have to be more cautious. It is a living example that we are living through," Jaitley said.