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Judicial Accountability and Separation of Power

Written by: Rimali Batra - ILS Law College, Pune
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‘Judiciary Unlimited’- an unelected judiciary which is not accountable to anyone except its own temperament has taken over significant powers of Indian Governance. Conflict between the judiciary, legislature and the executive has been extant since 1950 and attempts of drawing the line have been dropped including the Judges (Inquiry) Bill, 2006. The courts have gone well beyond ensuring that laws are implemented. Now, the Supreme Court has invented its own laws and methods of implementation, gained control of bureaucracy and threatened officers with contempt of court if its instructions are not complied with. The question is not whether some good has come out of all this. The issue is whether the courts have arrogated vast and uncontrolled powers to themselves which undermine both Democracy and Rule of Law, including the powers exercised under the Doctrine of Separation of powers.

Our constitution is a very well-built document. It assigns different roles to all the three wings of governance- the legislature, executive and the judiciary. There is no ambiguity about each wing’s powers, privileges and duties. Parliament has to enact law, Executive has to enforce them and the judiciary has to interpret them. There is supposed to be no overlapping or overstepping.

The Judiciary versus the Executive or legislature is a battle which is not new but in recent times, the confrontation is unprecedented with both the sides taking the demarcation of powers to a flash-point. The first Salvo was fired by the Lok Sabha Speaker, Som Nath Chatterjee who accused the Judiciary for interfering in the legislative matters and stated publicly that ‘every one has to remain within the Laxman Rekha of the Constitution’. A conflict nevertheless arises in practical application of statutes that can sometimes be overstepping. Who is then to decide? Who has been entrusted with the responsibility of conflict resolution in such cases? Ultimately it is the judiciary to decide whether there has been a trespass in each other’s territories. And while taking such decisions the judiciary should keep within the tenet of the Constitution.

Under Article 121 of the Constitution, the conduct of a judge cannot be debated in the Parliament. There is a separate procedure for impeachment; this is with the intention to secure the independence of the judiciary. Similarly, under Article 122, the proceedings of the parliament cannot be questioned by the judiciary- even if a point of order is found contrary to the statue. This is indirectly envisaging the supremacy of the legislature in making laws, based on reasonable policies that cannot be questioned.

Nehru was engaged at the Supreme Court over agrarian legislations, whereas Mrs. Gandhi wanted a ‘committed’ judiciary (1969-75). The Judiciary has failed the nation during the time of Emergency (1975-77) but invented public interest litigation (hereinafter referred to as PIL) to project a new image of itself. Has the Supreme Court gone too far? PIL started with a limited focus but has expanded into whatever areas the court wishes to engage. This tool of Judicial review was also used to implement promote Judicial Activism, but without any Judicial accountability. It was after the First amendment that the tussle of limits on the power of these wings started. This resulted in the judiciary creating a Constitutional dustbin for all the unconstitutional actions. This tussle resulted in landmark judgments of Indira Gandhi, Golaknath, and Keshavananda and also laid down the basic structure doctrine. Where, Separation of Powers was also made the basic structure of the constitution.

Therefore, an argument based in the extracts from the constitution indicating the supremacy of one wing is completely absurd and misses the high ideals of democracy envisaged by the framers of the constitution.

India is a democracy and it has to be and should be governed by elected representatives and not merely judges, amicus curiae or committees and commissions that is accountable to the Supreme Court. The bottom line remains that the judiciary should go after established wrongs, instead of going after there enforcement. The Conflict of the wings unless resolved, would result in repercussions for governance. It’s time for Judge’s (Inquiry) Bill, 2009.

Separation of Powers

In the context of Separation of Power, judicial review is crucial and important. We have three wings of the state- Judiciary, Legislature and Executive (not necessarily in that order) with their function clearly chalked out in our constitution. Article 13 of the constitution mandates that the ‘State shall make no law, which violates, abridges or takes away rights conferred under Part III’. This implies that both the Legislature and the Judiciary in the spirit of the words can make a Law. But under the theory of checks and balances, the judiciary is also vested with the power to keep a check on the laws made by the legislature. Hence, the introduction of Judicial Review.

But where is the judicial accountability of a judicial review. The Judge is accountable to no one, not even to another judge, the question of legislature and executive does not arise. There is supremacy of the constitution that prevails, but the limit of such supremacy has too been left to a judge to decide.
The issue is whether any amendment or any ordinary law is put beyond the scrutiny of judicial review? Frictions between the wings of the state are indeed not new. Every department justifies its actions ‘as per the provisions of the constitution’. But, finally, it is the judiciary that has a firm foot in interpreting the constitution, and this was reiterated by nine judge bench[1].

The Rule of law pre-supposes that the state is constituted in these three distinct organs. One of the important facets of the Doctrine of Separation of Power is the independence of the judiciary which gives teeth to the maintenance of rule of law. Alexander Hamilton in Federalist 78 remarks[2] on the importance of the independence of the judiciary to preserve the separation of power in the following words:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited constitution, I understand one which contains certain specified exception to the legislative authority; such for instance that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than the courts of justice, whose duty must be to declare all acts contrary to the manifestation tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Montesquieu finds that tyranny pervades when there is no separation of powers, I quote:
“There would be an end of everything, where the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting the laws, that of executing the public resolution and typing the causes of individuals.”

The Supreme Court of India has held the Separation of Power as the basic Structure of the Constitution.[3] And even before the doctrine of Basic Structure was propounded, the importance of Separation of Power was illustrated by the Supreme Court in the Re-Special Reference No. 1 of 1964[4] (Legislative Privilege Case).

Instances of the Conflict of the Wings

The first wave of judicial intervention in legislative matters came in the mid-1990’s when the four important decisions of the constitution overturned the then existing balance of Power. Various high courts reinterpreted Article 356 so that the blanket powers of the governors to dismiss state governments were curtailed, the power to punish for contempt of court under Article 142 was expanded beyond court rooms and ‘inherent powers’ of the SC was used to cover a wider range of subjects. But the most important change came in the process of appointment of judges under Article 124 and 217 in 1994. Executive’s exclusive right was diluted now the SC’s collegiums- consisting of the Chief Justice of India and four senior most judges. The executive may stall the appointments of those it doesn’t want but want but cannot foist those it wants on the benches.

This follows attempts by late Prime Minister Indira Gandhi to pack the benches with her acolytes that led to infinite pressure on the judiciary. The Executive had to withdraw from transferring of Judges. All this may have imparted a sense of security and immunity to the judiciary from political interference but also left the politicians insecure. Predictably, politicians have bristled at the directions to the administration as they see this as encroachment on their turf.

SC on Reservations in Private Institutions:

The SC’s stance on the reservation of the OBC’s in Private Institutions ignites the confrontation with the Legislature, a confrontation that is assuming grave dimensions. Very categorically on August 2005, the SC takes out private educational institutions out of the quota net. Five months later the parliament amends Article 16 to enable OBC quota, against which a PIL is filed. Later, the students call off strikes on the SC assurance. The Government then forms an oversight panel. Strangely and confidently the SC demands the bill from the legislature, as it wants to know the exact OBC population to decide the Quantum of Quota. Whose Job is the Hon’ able SC doing? Not it’s own. The Center has now dived the bill into two parts and reserved the one introducing reservations in private institutions, as it is the legislature’s right in Public good.

PIL on the Constitutional Validity of Office of Profit Bill:

It sparked in March 2006, when after Sonia Gandhi resigned and negotiations began to save the 12 left MP’s and several others MLA’s across the political spectrum. All this happened in the backdrop of Jaya Bachan’s membership being terminated by the Election Commission citing court’s precedents on office of profit. Finally in May-August 2006, the bill was passed to exempt the offices from the office of profit despite the objections from the president. The MP’s believe that defining office of profit is the prerogative of the Parliament. But, the SC was ready to consider a PIL on the constitutional validity of such a bill, as any legislation has to conform to the letter and sprit of the constitution. Was the Judiciary wrong or right? This is left for the judiciary to decide. Is our state still under the control of a limited judiciary or have the other organs become subordinate to it? The Constitution gives the answer, in the name of ‘Doctrine of Separation’.

SC on the Cash for Queries Scam:

The Lok Sabha speaker when taunting the Judiciary to stay within the Laxman Rekha was referring to the judicial deliberations of 11 MP’s in the Cash-for-Queries scam. The stake of the Judiciary was raised higher by refusing to entertain summons filed in the Supreme Court. On 11th September 2005, 11 MP’s were caught on Camera accepting bribes and were expelled after all party meeting. The SC Suo Motu issued summons to the speaker for the reason behind expulsion. But the Speaker refused to answer the court summons on the process of expulsion being a purely legislative matter. Still later, when plea were filed by the MP’s on House privilege of self-regulation and the SC admitted it without any hesitation and second thought. The tussle was that the SC believed that it was under a constitutional mandate to review this decision, whereas the legislature titled it as an ‘unnecessary interference’. Is the judiciary really going beyond the spirit of the Constitution?

SC on the Power of Clemency with the Governor:

It was when the former Andhra Pradesh governor Sushil Kumar Shinde granted clemency to Gowru Venkata Reddy, a congress activist; it led to another landmark judgment by the apex court. The SC said the power to grant clemency is not absolute and has to be unbiased and the reasons have to be explained for the same. But, the governor said that he had exercised powers under Article 161 of the Constitution, which is not questionable. Also, Article 72(3) says, that:
“Nothing shall affect the power to suspend, remit or commute sentence of death exercisable by the Governor of a state under any law for the time being in force”
The court was of the opinion that the any action under this Article is hit by Judicial Review, if it is against the basic structure of the Constitution. The court in order to protect one basic structure violated another, namely ‘Separation of Power’.

SC and the sealing Drive in Delhi:

February 16th 2006: SC ordered sealing of over 50% commercial properties, the drive for which began in March. During that time the urban development ministry proposes mix-land use law and then six month moratorium. But, on 1st August 2006, this moratorium is declined. With this the Executive took charge and on May 30th 2006 the Delhi Special Provisions Act granted a one-year relief. Late in September that year, the sealing began as per the orders of the SC, which resulted in 3 deaths and was put off till January, next year. But, finally as the boss, the Centre amended the Master plan to allow changes in land use. We seem to have forgotten what the executive is and judiciary and what are there roles? All the three need a revision. The point in the drive in Delhi is an evidence of the failure of the governance, as the judiciary stepped into the shoes of the Executive.

The Delhi High Court literally opened the Pandora’s Box when it ordered the municipal corporation to clean up its acts and started identifying the illegal buildings. The court even appointed observers and commissioners to oversee the demolitions. This resulted in the government acting in a hurried behavior and releasing new norms, which were again questioned by the apex court. MLA Harkrishan Singh Bali broke the seal of several establishments and asserted that the SC cannot appropriate the function of the Executive. It is the function of the executive to make master plans and execute them and the apex court should only adjudicate whether it is right or wrong? This is a clear case that will again fall prey to the order of the judiciary in the long term.

The Supreme Court And Public Interest Litigation

There needs to be a re-mentioning of the fact that a PIL under Article 32 of the Indian Constitution can only be filed if a question concerning the enforcement of a Fundamental Right is involved. The Supreme Court has expanded the version of PIL by including filing firstly by individuals, weak and oppressed group who are unable to vindicate their own rights; secondly by the court taking a cognizance suo motu; thirdly by public spirited individuals and in all these the court gone too far from its own laid down concept of ‘Locus Standi’. The court has also given an edge to the public interest over fundamental rights. This reverses the basic assumption that it is the rights that are fundamental not the remedy. The Supreme Court has provided a balance between rights and Public Interest. The concept of PIL started with a limited focus but had expanded unlimitedly in whatsoever area the court wished to engage.

Instances of ‘Judiciary Unlimited’

The CNG decision of the Supreme Court may be applaudable in its effect, but are these issues of the Legislature. The order clearly reflects transgress of the judiciary into the domain of the legislature with the use of PIL. But who is the judiciary accountable to for this intervention?

Under the implementation of the forest legislation, the court has appointed committees which have now become ‘maharajas’ of the forest throughout India. Their work is unpredictable and the effects devastating. Also, in forest cases, levies running into Crores have been imposed on a formula devised by the Court itself and entrusted to a fund created by it again. Surely, these are matters of no one but the Executive and Legislature respectively.

One might fail to understand why and how the lapses in the enforcement of planning laws in Delhi fall under the direct supervision of the Supreme Court. This is a clear case of trespass in the functioning area of the executive. The court has made attempts in implementing the unenforced laws, under the title of ‘Judicial Review’ knowingly that there is no accountability. Indeed to an extent the court can implement the plan of the parliament but by no means peremptorily bypass land use planning devised by the legislature for Delhi.

A few years ago, the court had also thrown out a large number of industries without the statutory law on the subject. And in a King Canute gesture, the court has commanded the cleaning up of the Yamuna and the Ganga. It has also prohibited habitations within 300 meters from Yamuna. This is the spark of the judicial dictatorship.

Both in 1999 and 2005, the Supreme Court seriously transgressed into the autonomy of the Jharkhand and the UP state legislatures by ordering them to follow certain procedures in internal affairs constitutionally entrusted exclusively to the legislature. Examples can be multiplied.

More recently, in 2006, in the Police case, the Supreme Court has created new extra-constitutional institutions who have virtually taken over the administration of the police especially in service and operational matters contrary to the existing laws, rules, regulations and orders. This has resulted in a situation of power without responsibility with the Supreme Court.

The result will be that there is no consistency in the approach because there are no set rules to be followed. Approach and Attitudes may vary from judge to judge. This leading to the democratic power flows from the Judiciary through the legislature and executive. Evidence is, that today, in some areas, bureaucrats in committees approved by the Supreme Court can bypass their own ministers because they report to the Supreme Court. So, we now have an Executive cum legislating Judiciary.

The unregulated judicial review

Introduction of Judicial Review and Amendments by Legislature:

The first amendment introduced Article 31B in 1951 with a Ninth Schedule containing items 1 to 13. Pandit Nehru had assured the parliament while speaking on the First Amendment that there was no desire to add to the 13 items which were being incorporated in the Ninth Schedule and even this small list of 13 items was described by the Prime Minister as a long schedule[5]. This amendment was first challenged in Shankari Prasad v. Union of India[6] where the Supreme Court held that 1) it was not Ultra-vires or unconstitutional. 2) Article 13(2) does not affect amendments under Article 368 of the Constitution and 3) Article 31A and 31B do not make any changes in Article 226 or 136 so as to attract the provisions of Article 368. But, in view of Doubt expressed in the case, a bench of 11 judges was constituted in the case of Golaknath v. State of Rajasthan[7], to reverse Shankari Prasad and to hold that Article 13(2) includes amendments made in the constitution. And an amendment affecting fundamental rights is covered by the proviso of Article 368. Finally, with the coming of this order the legislature from 27.2.1967 had no power to amend part III. Irrespective of this judgment the Parliament passed the Twenty fourth, Twenty fifth, Twenty Sixth and the Twenty Ninth Amendment Acts. The challenge to this was before a 13 judge bench in Keshvananda Baharti’s case[8]. The court by majority overrules Golaknath and laid down that the Constitution does not enable the Legislature to amend the basic structure of the Constitution.

Judicial Review and Indira Gandhi v. Raj Narain[9]
In June 1975 the elections of Mrs. Indira Gandhi were set aside by the Allahabad High Court on grounds of alleged corrupt practices, and an appeal against this order was pending. During the pendency of the appeal the 39th Amendment act was passed to ouster Judicial Review. A challenge to this in the Supreme Court resulted in striking down the addition of Clause 4 and 5 of Article 329A.

Judicial Review and Minerva Mills v. Union of India[10]:
The legislature passed the 42ndAmendment to enlarge its role, by adding clause 4 and 5 of Article 386. This expansion of power was considered unconstitutional by the Judiciary and was thrown in the constitutional dustbin unanimously. In the words of N.A. Palkhivala[11] the judgment of Minerva Mills can be best summarized as:
“The limited amending power of the legislature was to preserve and protect the basis structure of the constitution. Since, the parliament has no right to alter any fundamental feature, it has no right so to amend Article 368 as to destroy that basic feature by abrogating the fundamental limitation on the amending power….and after all the supreme Court has laid down the law that parliament had no competence to alter the fundamental features, for the parliament to declare that it has the competence is not merely an act constitutional impertinence but an irrational exercise in futility”

Therefore, Prof. Granville Austin in his book ‘Working a Democratic Constitution (1999), has described the Ninth Schedule as:
“The constitutional vault, into which legislations could be put, safeguarded, for judicial review, the judges being denied the key…”
But, the Judiciary ended up creating a ‘Constitutional Dustbin’ for the Unconstitutional Laws.

Judiciary Created A Constitutional Dustbin
Critical Analysis
Has the Supreme Court started to miss the wood for the trees in its controversial judgments? January 2007, the IR Coelho case on the ninth schedule is put to question. The Ninth schedule was created by Nehru’s government as a vessel to protect reform legislations. Nehru’s vessel became a constitutional dustbin for Mrs. Gandhi. And later the government started providing immunity for any kind of legislation regarding elections, mines and minerals, industrial regulations, requisition of property, monopolies, coal and copper nationalization, general insurance, sick industries, departmentalization of accounts, Kerala Chitties Act, Tamil Nadu reservations of 69% and so on. There is no principle to underline these selections.

Theoretically, all state and union legislations could be thrown into the dustbin. The ‘Dustbin’ is created by the judiciary and therefore has to be of limitless capacity. This capacity was never inherent there was a time when the dustbin has total immunity. The Statutes never had to breathe the air of judicial redress or confront the principles of fundamental rights. But, now is the time when the parameters for unconstitutional statues have been set and the every such statue that fails the test of fundamental rights is thrown in the Dustbin to rot.

Where is the Supreme Court going wrong? The Supreme Court had three choices to make. First choice would be to abolish the very mechanism of creating such a dustbin. This is what I believe the court should have done. The very idea that a constitutional amendment can provide preferential protection to specially selected statutes (ranging 284 in number and many more) seem to be an imprecation or an anathema (something that you hate). Even if it was required for the agrigarian reforms in 1950, it has become of potential abuse now. The original constitutional makers did not envisage such huge constitutional subversions. Sometime the very width of the ‘enabling power’ of judiciary is so frighteningly wide that it’s very existence and potential is a threat to the constitution’s basic structure and separation of Powers. It is this very width and potential that arose anxieties in the famous Kesavananda Case (1973), which then created the basic structure doctrine and laid down the rule of law indicating at the separation of powers. The mere confrontation of wide powers disturbs the scheme and structure of Constitution.

The Second option with the Supreme Court was to provide total immunity to the Ninth Schedule from Judicial review and Fundamental rights. This would have gone to the other extreme, as judicial review and fundamental rights are the basic structure of the constitution. Any ways, nine judge benches could not have overruled an 11 judge bench that is Kesavananda Bharti, which protected the basic structure of the constitution.

A Third Approach- I.R.Coelho v. Union of India
The Supreme Court chooses the third alternative which looks like the middle curse. After the Coelho judgment, there are now two classes of statures. The ‘preferred’ (Ninth Schedule) statutes which will have limited immunity and the ‘non-preferred’ statutes which will fall rigour of constitutional rights
Why was this classification necessary?

The answer that the Parliament is exercising its amendment power is not at all satisfactory. Such a distinction is baseless. No heaven would fall if all statutes are given the same constitutional status even of evaluate differently. All statutes should uniformly be subjected to the fundamental rights provisions, which, in turn, balance the requirements of rights and the pubic interest. India’s constitutional concept of reasonableness is precisely about all this. I do not indicate that some statues are not more important than the others but then reasonableness will take all that into account. The ninth schedule currently gives preferred status to 284 statutes and many others may follow, because once in the schedule, they will have higher immunity.

A greater immunity of these laws is provided by this latest judgment. Two tests have been discussed by the court. Legislations or Executive actions under protected laws must meet the dual test. Such laws must not violate the Fundamental rights and the Basic Structure of the Constitution. Article 14 (Equality), Article 19 (Freedom of Speech and Expression) and Article 21 (Right to life) belong to the Basic structure, Article 15 (non-discrimination) and amendments relating to reservations are no included. Why are religious or cultural rights or exploitation and untouchability not a part of the basic structure? Or are they? They are all left to chance by the Supreme Court. And the Judicial decisions are checked by the Judge’s (Inquiry) Bill, 2008.

The Ninth Schedule dustbin should have been buried, but the court ignored the opportunity. This 21st Century Judgment views the constitution with a 20th century eye, but the Parliament still has the tool to abolish the ninth schedule.

The Courts have gone way beyond ensuring that the laws are implemented. Gone are those days when the Supreme Court simply ordered the executive to ensure that the laws are implemented. Now, the Supreme Court has created its own executive and legislative wing. It has invented its own laws, rules, and methods of implementation, and has used contempt of court as a threat for disobedience of its orders. The question remains, whether the courts have come too far and undermined its own established principle of Basic structure, including separation of Power and buried the rule of law. India is a democracy and it has to be and should be governed by elected representatives and not merely judges, amicus curiae or committees and commissions that are accountable to the Supreme Court. Let there be a check, a Judge’s (Inquiry) Bill, 2008 to be interpreted by the judiciary again. After all a Constitutional responsibility flows from a democratically elected legislature and a Judicial Dictatorship is not better than any other kind.

[1] I.R.Coelho v. Union of India (2007) 2 SCC 1
[2] Quoted by the Supreme Court in I.R.Coelho v. Union of India (2007) 2 SCC 1
[3] His Holiness Kesavananda Bharati Sripadgalvaru v. State of Kerala & Anr. (1973) 4 SCC 225.
[4] (1965) 1 SCR 413.
[5] Waman Rao v. Union of India (1981) 2 SCC 362 at 396.
[6] (1950) 2 SCR 89.
[7] (1965) 1 SCR 933.
[8] Supra Note 4.
[9] (1975) Suppl. SCC 1
[10] (1980) 3 SCC 625
[11] N.A. Palkhiwala, ‘We the People’, pg. 210.

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