DISEQUILIBRIUM: Family Ties In Strife

In the hotbed of neural systems that typifies India, naked aggression is a way of life as thresholds are crossed to commensurate with the rising mercury, given that we are a tropical country. Circuits that subserve similar functions are grouped in neural systems that serve broader behavioural purposes. The most general functional definition divides neural systems into sensory systems like vision or hearing that acquire and process information from the environment, and motor systems that allow the organism to respond to such information by generating movements.

In the ground of tactical warfare that is laid out between the executive and judiciary since 2010 when corruption peaked and the body politic virtually abdicated its authority, the cynosure has been on the latter. Once the BJP swept to power under its power mascot Narendra Modi, one thought that this mien of the aggressor will change. Given Modi’s powerful persona, it was given that judicial activism would retreat and the executive would once again take control. But transgressions and infiltration into the role of the executive continued nevertheless. The reasons were many. Its culmination took place a few days back with outbursts from both sides in full view of the president.

One can argue that under the Constitution and its mechanism of separation of powers, each has his own domain. But what one witnessed in the last week of November was an ugly spat between the two sides, both taking irrevocable and hard line positions on what constitutes their domain. Much like the dangerous International Border and LoC that exists between India and Pakistan, where bloody skirmishes happen nearly daily. A line of control was Sabbath brought to the fore the complex power play between the judiciary and the executive as law minister Ravi Shankar Prasad took the position that the balance of power was sometimes under strain due to judicial overreach while Chief Justice of India Dipak Misra said governance was too complicated to be compartmentalised. Misra said governance could not be defined by a mathematical formula and refuted the suggestion that the judiciary was overstepping its domain. “The Supreme Court believes we are working under constitutional sovereignty and we are bound by the rule of law,” he said, adding that one single religion that every citizen should follow was constitutional religion. “I must clearly state that the fundamental rights of a citizen have to be kept at the pinnacle. There is no trace of a doubt that no right is absolute but the fetters imposed are to be scrutinised with studied caution so that an ambiguous concept does not destroy the central fabric,” the CJI said.

The stance was tough and strident as he expounded on the theme and said, “The essence of rule of law signifies supremacy of law and predominance of legal spirit, which inevitably leads to good governance as opposed to arbitrariness. This principle survives and thrives through numerous provisions under the Constitution which make room for the executive and independent judiciary. And that requires all of us to humbly and dutifully accept the principle of constitutional sovereignty.”

Launching the fusillade, Prasad had observed that the judiciary had sometimes encroached on the domain of other organs and said, “The balance needs to be respected and fostered. It has come under strain sometimes. Let me make it clear that public interest litigation should not be made a substitute for governance. The elected representatives of people have been given the right to govern. The founding fathers of the Constitution said that governance must remain with those who were elected by people.” Mind you, the same PIL became the instrumentality and even weapon of mass destruction which unleashed hell during the graft laden years of UPA 2 and it was the same BJP which was cheering from the sidelines as the principal opposition party. In fact, the BJP benefited from the PILs against corruption which finally saw several heavy hitting decisions like cancellation of coal blocks and 2G spectrum allocation.

In the seminal verdict in the right to privacy judgment, the apex court has shown where it stands and a reminder was served to one and all when Misra stated, “The fundamental rights are in the core value and the bedrock of the Constitution. An independent judiciary with the power of judicial review has been conferred with the power of the ultimate guardian of the Constitution to strike a balance... to ensure that respective governments are functioning as provided by the law within their respective domains.”

PM Modi tried to play peacemaker when he tried dousing the fire, stressing that the legislature, the judiciary and the executive were part of the same family and should work to strengthen each other, even as the Chief Justice and the law minister sparred over the issue of judicial activism. The prime minister also said that the three wings — the legislature, the judiciary and the executive — need to brainstorm on how to move forward in the changed scenario. “They are members of the same family…we do not have to prove anyone right or wrong. We know our strengths, we know our weaknesses.” “The separation of power is equally bounding upon the judiciary and is the law of the land,” Prasad had countered. Family ties are obviously not kosher and the strife and dissonance is serious.

The thorny relationship stems from various pinpricks, none more than the SC not accepting the selection of judges whereby it quashed the National Judicial Appointments Commission. Dismayed, Prasad said the Constitution makers did not desire that the law minister must remain a post office in selection of judges. “If a PM and the law minister cannot be trusted with appointment of judges, it is a huge question and the judiciary and polity of his country will have to look into it,” Prasad said. The NJAC, which sought to give politicians and the civil society more say in the appointment of judges to the higher judiciary, was junked by the SC in 2015 after a brutal cage match. The government and the judiciary is presently locked on finalising the Memorandum of Procedure (MoP) on selection of judges. The law minister’s remarks came against the backdrop of finance minister Arun Jaitley criticising the “trend” of courts appointing retired judges to head committees and wondered how judges would feel if other organs stepped in to do their job.

Many people have explained how the separation of powers is based on the principle of trias politica. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world, which came into existence since the days of the “Magna Carta”. Though Montesquieu was under the erroneous impression that the foundations of the British constitution lay in the principle of Separation of Powers, it found its genesis in the American Constitution. Montesquieu had a feeling that it would be a palliative to good governance but it had its own downsides. A complete Separation of Powers without adequate checks and balances would have nullified any constitution. It was only with this in mind the founding fathers of various constitutions have accepted this theory with modifications to make it relevant to the changing times.

Writing in 1748, Montesquieu said: “When the legislative and the executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should exact tyrannical laws, to execute them in a tyrannical manner. Again there is no liberty if the judicial power be not separated from the legislative and the executive. Where it joined with the legislative, the life and the liberty of the subject would be exposed to arbitrary control; for the judge would be then a legislator. Where it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, where the same man or the same body, whether of nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and of trying the causes of individuals.”

The judiciary in India now reckons that the fundamental rights of the citizenry enshrined in the constitution subsume the separation of powers as delineated by the same Constitution. For the judiciary, it believes has overriding powers to protect the citizen. The Constitution guarantees six fundamental rights to Indian citizens as follows: (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, and (vi) right to constitutional remedies. In a polarised environment, it is vital for the judiciary aka last man standing to continue stepping into the breach to maintain the delicate balance of power. And when nobody in the Executive is listening or acting on issues, it makes eminent sense for judiciary to joust on his behalf. The recent unanimous nine bench verdict on privacy was a reiterationof the same core constitutional values and principles. The Supreme Court ruled with the same underlying credo at work that privacy is a fundamental right that requires constitutional protection.

Same song, different verse for the Congress wailed and railed against judicial overreach and now the BJP is doing the same. In the process one is witnessing a classic street brawl, once again throwing into stark relief that fate is a cunning wrecking ball. While the PM was right when he said — Legislature should have the independence of making laws, the Executive should have independence in taking decisions and Supreme Court should have independence of interpreting the constitution. Dipak Misra’s take is that he too is interpreting the Constitution. The practice of a bellicose judiciary since CJI Kapadia’s tenure has been taken to the next level of competence by Misra.

Sandeep Bamzai