LEFT HAND DRIVE - Keep them separated

Judicial intervention in the executive domain is undemocratic and, worse, beyond

scrutiny

T WO RECENT pronouncements by the judiciary - one concerning the sentencing of

mediaper- sons under charges of contempt of court, and the second declaring a
bandh called by the DMK in Tamil Nadu on the Sethusamudram controversy as
illegal, and the subsequent comments asking the Centre to dismiss the state
government - have again brought to the fore issues concerning judicia1activism'.
Since the details have been widely reported, we shall discuss the larger issue
concerning the separation of powers in a modern parliamentary democracy French
philosopher Charles de Montesquieu laid down a benchmark that continues to be the
foundation of any modern democracy He drew attention to the dangers inherent in
the concentration of legislative, executive and the judicial powers in one authority He
stressed on the necessity of a concept of checks and balances in constitutional
governance. Many a modern Constitution, including ours, have incorporated this
concept. As Chief Justice K.G. Balakrishnan notes, "The Constitution lays down the
structure, defines the limits and demarcates the role and fimctions of every organ of
the State, including the judiciary and establishes norms for their inter-relationships,
checks and balances." While working out the mechanics for the three wings to play a
joint and participatory role, the Constitution defines the centrality of the will of the
people. The Preamble defines this most eloquently by stating "We, the people of
India" and "do hereby adopt, enact and give to ourselves this Constitution". The
eternal message is the sovereignty of the people and its primacy in our constitutional
system. Lok Sabha Speaker Somnath Chatterjee, himself an eminent jurist, notes:
"The framers of our Constitution took infinite care to provide for an independent and
impartia1judiciary as the interpreter of the Constitution and as the custodian of the
rights of the citizens through the process of judicial review, which gives the mandate
to the judiciary to interpret the laws but, if I may humbly submit, not to make them,
nor to lay down general norms of behaviour for the government or to decide upon
public policy The concept is 'judicial review' and not judicial activism." In the
Constituent Assembly Jawaharla1 Nehru had stated: "No Supreme Court and no
judiciary can stand in judgment over the sovereign wn of Parliament, representing
the will of the entire community If we go wrong here and there, it can point it out,
but in the ultimate analysis, where the future of the community is concerned, no
judiciary can come in the way... ultimately the fact remains that the legislature must
be supreme and must not be interfered with by the court of law in measures of social
reform." The transgressing of the defined space by any of the organs is bound to
create not merely friction, but gross misgovernance. The inadequacies of the
executive, compounded by frequent disruptions of the legislature, negating the
latter's vigilance over the former, has often laid the basis for the judiciary to
intervene. Justice Verma notes, "The deliberate misuse of the judicial process by
some vested interests to settle political scores, or to shift the responsibility to the
judiciary for deciding some delicate political issue found inconvenient by the political
executive", has left the judiciary pronouncing on matters that should be dealt with
exclusively by the executive. Instead of returning such matters to the domain of the
executive, there are umpteen instances of the judiciary pronouncing orders. Justice
Verma notes, "Judiciary has intervened to question a 'mysterious car' racing down
Tughlak Road in Delhi, allotting a particular bungalow to a judge, specific bungalows
for the judges pool, monkeys capering colonies to stray cattle on the street, cleaning
public conveniences and levying congestion charges at peak hours at airports with
heavy traffic, etc., under the threat of use of contempt power to enforce compliance
of its orders." We could add to this list: from nursery admissions to the air people
breathe, use and misuse of ambulances, begging in public, use of subways, the
nature of buses we board, the legality of construction in Delhi, size of speed-
breakers on the roads, autorickshaw overcharging, enhancing of road fines, etc. By
declaring bandhs as illegal, the judiciary is creating a multiplicity of rights. It is
laying the basis for conflict between rights of an individual and rights of a community
As Justice Anand notes, "The danger of judiciary creating a multiplicity of rights
without the possibility of adequate enforcement will be counterproductive and
undermine the credibility of the institution... it needs to be remembered that courts
cannot run the government... the judiciary should act only as an alarm clock, not as
a time-keeper After ringing the bell, it should ensure that the executive has become
alive to perform its duties." There is a serious issue involved here. The executive and
the legislature, given their responsibility under the Constitution to manage public
affairs, are accountable to the people. Accountability, in fact, differentiates
democracy from other systems of governance. The discharge of executive
responsibilities by any other organ, say the judiciary, is essentially unaccountable.
This is anathema in a democracy Further, once the judiciary gets involved in an issue
that falls within the executive domain, it precludes the possibility of the legislature
exercising its assigned role of ensuring executive accountability through effective
legislative scrutiny Chatterjee asks a pertinent question: "In the absence of any
procedure under any law made by Parliament for enforcement of orders made in the
public interest litigation, relating to executive or legislative matters, can the courts
enforce such orders by adopting novel methods like appointing monitoring
committees, thus themselves entering into the arena, or by taking recourse to the
jurisdiction in terrorem, namely the power to punish for contempt of court? I believe
the nation is entitled to know the answers." On the issue of contempt, recollect a
recent judgment delivered by a bench of the apex court headed by Justice R.V
Raveendran: "It should be remembered that exercise of such power results in
eroding the confidence of the public rather than creating trust and faith in the
judiciary" It is this trust and faith that the judiciary needs to further strengthen.
Invoking the provision of contempt of court to silence critics of possible judicial
misconduct would appear particularly indefensible. While these are matters that need
to be seriously debated, the efficacy of our justice delivery system needs to be
strengthened. The large number of pending cases and the consequent agony and
injustice heaped on people does not augur well for our country The time has come
for the country to seriously consider the constitution of a National Judicial
Commission comprising representatives from the judiciary, the executive, the
legislature andfromthebar Thiscoulddealwith an entire range of issues, from the
appointment and transfer of judges to ensuring judicial accountability Sitaram
Yechury is ME Rajya Sabha, and membec CPI(M) Politburo

http://epaper.hindustantimes.com/Default.aspx?selpg=2122 Pg 10, Thursday, 04

oct’07