Judiciary denting separation of powers?

Addressing the Retreat of the Supreme Court Judges in Bhopal, President Pranab Mukherjee had reminded the judiciary that judicial activism and innovation should not wreck the balance of power among the executive, the legislature and the judiciary.

In 2012, at the 150th year celebrations of the Madras High Court, he said “Judicial pronouncements must respect the boundaries that separate the legislature, the executive and the judiciary.” He added that while the exercise of powers of the legislature and the executive “are subject to judicial review, the only check on the judiciary’s exercise of powers is the self-imposed discipline and self-restraint.”

Montesquieu had in 1748, said in his treatise ‘Spirit of Laws’ that only a separation of powers can guarantee the liberty of the citizens. The framers of the Indian Constitution assiduously created a delicate balance between the 3 organs of the state. Fears of judicial overreach existed even then. Alladi Krishnaswamy Aiyar, had expressed his fears in the Constituent Assembly that “the judiciary should not place itself as an imperium in imperio” – a state within a state.

Though the SC has, in the National Judicial Appointments Commission (NJAC) case, held that separation of powers is a ‘core component of the basic structure’ of the Constitution, the transgression of the executive and legislative by the judiciary has continued, compelling the President to repeat his caution.

By abandoning the principle of locus standi by which only an affected person can approach a court of law and evolving a new jurisprudence of public interest litigation by which any one can approach a court of law for redressal of any grievance, the judiciary has enlarged its turf so as to overlap the executive.

Judiciary has even tried to encroach on the legislative turf.  Its transgression was climactic when, without caring for the sanctity of the legislature, a high court directed that the proceedings of the legislature should be videographed while discussing a no-confidence motion.

The SC has virtually amended several laws by judicial orders. Delhi Special Police Establishment Act clearly states that only a state government can permit the Central Bureau of Investigation (CBI) to conduct an investigation inside its territory. But the judiciary has often ordered CBI enquiries in many states without their consent.

The judiciary has even virtually amended the Constitution while denying the same power to the Parliament.

In the Golaknath case, the SC said that the Parliament cannot amend fundamental rights. Barrister Nath Pai, a socialist MP moving a Constitutional Amendment to restore to the Parliament its power to amend any part of the Constitution had said, “The SC has introduced an amendment of the Constitution. The Constitution, after the judgement in Golak Nath’s case, is a different Constitution. What I am trying to do by my amendment is to restore to the people of India the Constitution, the sovereignty, which belonged to them before the SC took it away.”

Appropriation of power
The SC also in effect amended the Constitution by appropriating to itself the power to appoint judges of the higher judiciary, which is unheard of in any other part of the world, by what a former SC judge, Ruma Pal says, “with all the interpretative tools at its command – termed by many as an unacceptable feat of judicial activism.”

In its anxiety to make the CBI independent the SC told the Attorney General that the “government need not wait for Parliament’s approval. There are other methods to achieve the objective, like issuing of an ordinance and it would be a golden day if that happens.”

In the Golaknath case, the SC expressing distrust of people’s representatives said “having regard to the past history of our country, it could not implicitly believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian state.”

In the NJAC case, it expressed distrust of the people themselves. It said, “At the present juncture, it seems difficult to repose faith and confidence in the civil society, to play any effective role to act as a directional deterrent, for the political-executive establishment.”

By declaring as unconstitutional the NJAC Act which had unanimously passed both the Lok Sabha and the Rajya Sabha and as many as 20 state legislatures, the judiciary demonstrated its lack of respect for democracy.

As Justice Krishna Iyer rightly said, “A radical transformation of the robed brethren has become necessary.” Of course, before our democracy of the masses is transformed into an oligarchy of the judges.