Required : A note on functions of three organs of state - legislative, executive and judiciary.

Immediate Context

Parliament is beginning a discussion on "the need for harmonious functioning of three organs of the State i.e. Legislature, Judiciary and Executive" tomorrow, this will spill over to monday and later. Two members, namely SHRI GURUDAS DASGUPTA and SHRI BASUDEB ACHARIA from the left party are initiating the discussion.

Larger Context

current debates of judicial activism, deterioration in the role of parliament and executive failure in India.

Description

Three to four page note in very simple language with current examples and some relevant excerpts/quotes from constitution/constitutional experts would do.

Deadline

9 AM, IST 26th Nov 2007

Revised to Wed 28th nov 2007

Requested by

Shri A. R Sippiparai, MP

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Response



1. Context

Now that the debate over the pillars of democracy has resumed in a manner not seen before, it is a good idea to analyze the very foundation on which the pillars rest. Dr. B.R.Ambedkar delivered the following exposition, as chairman of the Drafting Committee of the Constituent Assembly on October 14, 1949, which forms the basis of assumptions inherent in any constitution-:

"I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. Nowhere is such a provision to be found. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the state. Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the legislature without any kind of compulsory obligation laid down in the Constitution."

"Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the state acting within its own limitations and obeying the supremacy of the other organs of the state. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself.

"No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decide between that particular authority and any other authority, then the decision of that authority shall be binding upon any other organ".

It is atleast clear now what our founding fathers thought. So what went wrong? Assumptions? No. Rather a very important fact was missed out. That in a democracy, any constitutional authority derives its power from the people. If people start losing faith in an institution, there is nothing which can save it from fading away. And the vacuum which is created by this manifestation, has to be filled by something else. This is what has happened in India.


2. Current Situation

It is very important to mention here that tilt in the balance of power towards a particular organ is a temporary phenomenon. There is no reason to believe that the current situation would be perpetual in action. The phenomenon unfolding as of now is people in India are fast losing faith in the Legislature and the Executive. Reasons? No prizes for guessing. It is all too evident. A person or an institution commands respect by its actions. People representatives have consistently perfomed in the recent past to achieve the opposite. Be it the parliament or their constituency, their actions have left everything to be desired. It is all too clear that negligence of the basics of good governance has forced the Executive and the Legislature to take a seat in the corner. So countrymen are definitely not at fault when they do not trust their representatives. But why the same has not happened with the judiciary? After all, courts in India take a long time to dispose cases and there is corruption in judiciary too. No prizes for guessing this too. Expectations. Judiciary is not elected by the people. People do not expected judges to do the job of a government. And the role of courts, to protect the rights of the people, is such that they act as an option of last resort. Nonetheless courts have been far more dignified in their action than our Executive and Legislature. So the trust deficit created by the governance has been filled by the courts of late.

Of the various organs of the state, it is the Judiciary which has maintained its dignity in the public eye most effectively. Ordinary people look up to judges in a way in which they no longer look up to legislators, Ministers or civil servants. They may fear the Executive, particularly for its capacity to do harm, but they do not respect it as they respect the Judiciary. Judges, particularly of the higher courts, are by and large believed to be learned, high-minded, independent, dutiful and upright, qualities that one no longer associates with either Ministers or their Secretaries.

The high esteem enjoyed by the Judiciary leads people to turn to it for remedies for the many ills suffered by society. There are two important indicators of the increasing reliance on the courts for addressing what may broadly be described as social problems. The first is the proliferation of public interest litigation, and the second is the tendency to formulate economic and social problems as matters of right rather than policy. How far and in what ways the Judiciary will respond to this change in public attitudes will have major consequences for the operation of democracy in India.

Public interest litigation has caught the imagination of Indians with a social conscience. Its expansion has been accompanied by the growing importance of non-governmental organisations. It has increasingly exposed the weaknesses and defaults of the executive government and made citizens aware of the importance of their rights. Whereas universal elementary education was earlier treated as a matter of policy, it will become a matter of right through a proposed amendment of the Constitution. The failure of policy is a failure of the Executive whereas if something is made into a right it will acquire a greater measure of urgency; and where the administration failed to implement the policy, the courts may be trusted to see that the right is enforced.

It has not taken much time for our judges to see that the public has more trust in them than in the Executive. Judges with an activist inclination will perhaps welcome a more central role in social engineering than was envisaged in the Constitution. Responding to the misgivings expressed by some over the increase in judicial activism, Justice Ahmadi, then Chief Justice of India, had said in 1996 that ``the phenomenon of judicial activism in its aggressive role will have to be a temporary one''. In India what starts as a temporary phenomenon has an uncanny way of becoming permanent. If judicial activism leads to the further demoralisation of the Executive, it will not be a good thing for either the Executive or the Judiciary. In India the main work of governance has to be done by the Executive, no matter how virtuous the Judiciary is or how resourceful the non- governmental organisations are.

It is a good idea to mention here that this temporary change of equations in the corridors of democracy is not detrimental to the nation. It is perfectly natural for a nation of one billion people to face such challenges. And the democracy, which reincarnates itself after tackling these challenges, is much stronger than its previous form.


3. Examples of (perceived) Judicial activism

There have been numerous observations and path-breaking judgements delivered by our courts, particularly by the Supreme court. These have been instrumental in strengthening roots of democracy in India. Courts have delivered judgements in the past too, which landed them in a conflict with the governing institutions. But of late frequent observations have been made by the courts, some of far reaching consequences, which are being seen as encroachment of governing space by the judiciary. Some recent examples are-:

a) Uttar Pradesh and Jharkhand case: Some argue that this is a classic case of violation of the clear text by the Supreme court. Article 122 reads: "(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." There is an identical bar in respect of State legislatures (Article 212). Looks like judicial intrusion. No. But this is exactly what the Supreme Court did, not once but twice; first in the Uttar Pradesh case and next in the Jharkhand case.
On February 24, 1998, it said: "The order which commends to us is as follows: (i) A Special Session of the Uttar Pradesh Assembly be summoned/convened for 26 February, 1998, the session commencing forenoon. (ii) The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House. (iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously. (iv) The result of the composite floor-test would be announced by the Speaker faithfully and truthfully. 2. The result is expected to be laid before us on 27 February, 1998 at 10.00 a.m. when this Bench assembles again. 3. Ancillary directions are that this order shall be treated to be a notice to all the MLAs, leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum, no major decisions would be made by the functioning Government except attending to routine matters, not much of any consequence. 4. To come up on 27 February, 1998, as part heard Jagadambika Pal vs Union of India and Others (1999) 9 SCC 95." Two officers of the Uttar Pradesh Assembly, the Speaker and the Secretary, were subjected to the jurisdiction of the Court, which proceeded to regulate its "procedure or the conduct of business or for maintaining order". (Jagadambika Pal vs Union of India and Others (1999) 9 SCC 95. The Bench comprised Chief Justice M.M. Punchhi and Justices S.C. Agarwal and K.T. Thomas.)
Seven years later, on March 9, 2005, the Court cited this precedent and made an almost identical order in the case of the Jharkhand Assembly. Indeed, it went beyond the precedent by: (1) directing that oath be administered to the newly elected MLAs; (2) that the session convened on March 10 shall continue for the next day; (3) "there shall be no nomination in view of [sic] Article 333". An odd phrasing by the Court to direct the Governor not to nominate a member of the Anglo-Indian community to the House. Of course, no court has the power to issue such a direction to him. An illegal appointment can be quashed by the Court later by a writ of quo warrants. And (4) nor had the Court any power whatever to direct that "the floor test shall remain confined to the elected members only". The last part of the order was the only one the Court was entitled to make: "We direct the Chief Secretary and the DGP to see that all MLAs `freely, safely and securely attend the Assembly'." It pertained to order outside the House. The other four went beyond the Uttar Pradesh ruling, which itself violated the Constitution. (Anil Kumar Jha vs Union of India and Arjan Munda vs Governor of Jharkand & Ors. (2005) 3 SCC 150. The Bench comprised three Judges - Chief Justice R.C. Lahoti and Justices Y.K. Sabharwal and D.M. Dharmadikari.)

b) Central Education Institution Reservations Act 2006: Ae per PIB release, the constitution (93rd Amendment) Act 2005 was passed by both Houses of Parliament and obtained assent of the President. Through this Amendment, a provision has been inserted that the state (i.e. Parliament or other legislatures) can make laws for the advancement of the SC, ST or the OBCs of citizens in matters of admission to educational institutions, including private unaided institutions. This provision would enable laws to be made in respect of reservation of seats for the weaker sections and in regulating merit based admission, as also regulating the fee in private institutions. The State Governments as well as the Government of India can make appropriate laws in respect of institutions falling under their respective domain.

The Act has been a raging controversy since the day discussion started on it in public domain. Supreme court has accepted PILs which have challenged the validity of the amendment. The Executive has taken this action in bad light.

c) It was an all-powerful Executive that was called to account in January 2006 before the highest judiciary: since the government of the day was unable to satisfy a majority of the Constitution Bench of the Court that its action was bona fide, the dissolution of the Bihar Legislative Assembly by Presidential Proclamation (a purely Executive function) was struck down as being “unconstitutional.”

d) More recently, in January 2007, when in exercise of its constitutional “privileges” Parliament expelled a group of its members “seen” taking cash for questions, the Supreme Court stepped in to inquire into the constitutional validity of the expulsion orders. Ultimately the court upheld the orders, but the argument that Parliament’s power to expel its members was beyond judicial review was rejected.

4. Enhancing the Role of the Legislative Body

In light of the above situation the three important steps that the legislative body, in this case the Parliament, should take are as follows:
i. Conduct the proceedings of the Parliament, especially the Lok Sabha which is at the centre of attention of the people during the sessions. This means that the political parties on either side of the bench, should arrive at some common understanding and uphold that in toto, to participate and engage effectively, rather than resort to disruptions, which means evading discussion on key issues.

ii. Enhance the role of the Parliamentary Committees, and open these committees for greater scrutiny like the sessions of the Lok Sabha, so that the nuanced discussions required on various bills and legislations is carried out, thereby actually enhancing the role of the Parliament. The active role taken by the House Privelages Committee in dealing with the remarks of Ambassador Ronen Sen, is just an instance which reveals the potential scope of such Committees, which can also be utilized to hold the Executive more accountable.

iii. Engage in greater cooperation with expert bodies outside the Parliament, so that the debates and discussions in the Parliament are well informed and not seen as just 'politicking' by the public. This can go further than the existing input to the Parliamentarians, which is provided in-house, which is under staffed and is in a position to present only one side of an issue.