Democratic nation states generally
have structures that prescribe well defined
separation of powers between the legislative, the
executive and the judicial. Occasionally,
constitutional amendments modify the original
contours of this separation; however, no truly
democratic nation in the modern world has permitted
any one of the three arms to fundamentally encroach
upon the affairs of the other two.
Yet, threats of trespass exist at all times. In
truth, all three arms of the state are powerful
enough to expand their spheres of influence; and
none likes the red lights imposed upon it by the
others. Legislators wish to be the supreme authority
to make law and also abhor their remit being
questioned by the judiciary. The executive dislikes
its decision-making and action-taking authority
being questioned either by the judiciary or the
legislature. And the judiciary hates its judgements
being overturn by opportunistic legislative action.
There have been enough examples of such
infringements in recent times. Remember Pranab
Mukherjee as the finance minister introducing an
appalling retrospective tax legislation in the
Finance Bill, 2012, in response to Vodafone winning
a capital gains tax case in the Supreme Court? Even
more recently, the government introduced an odious
amendment to the Representation of the People Act,
1951, in this year’s monsoon session of Parliament
which, when it could not be passed in time, was
re-framed as an executive ordinance expecting
Presidential sanction. It was thankfully delayed by
Pranab Mukherjee qua President of India, then
publicly trashed by Rahul Gandhi and then taken off
the table. Note how the Central Bureau of
Investigation, which is under the jurisdiction of
the executive, is now being directed by the Supreme
Court in all its minutiae regarded the alleged coal
scam investigation.
The point of this article is to sound alarm bells.
Today, the nation’s intelligentsia is united in its
belief that the legislature is a dysfunctional joke
and that the executive lives in a binary state of
either rent-seeking corruption or permanently
paralysed inaction. Therefore, it feels morally
justified and vindicated in seeing the Supreme Court
tongue-lash the government and intervene in
directing executive action. This role has been
conferred upon the judiciary through public interest
litigations (PILs), which have been brought to
Supreme Court by genuine activists as well as
politicians posing as such.
While it is absolutely within the rights of citizens
to petition the judiciary in matters where it
believes that the conduct of government or the
legislature has been inimical to public interest, I
would submit that the Supreme Court should exercise
great constraint regarding what PIL it could admit.
I am sure that it does so. Nevertheless, words of
caution are in order because in public perception
the legislative and the executive have failed, and
there is a general sense that the only unsoiled
authority of the triad, the judiciary, must like
Hercules intervene to clean the Augean stables of an
enormous quantity of dung. As we know, it is
tempting to be Herculean, for it brings to the fore
the vision of committing heroic acts. Yet, if such
heroism, however well intentioned, threatens to
break the essential premise of separation of powers,
it may portend poorly for the future of the state.
In particular, the executive might become so fearful
and hamstrung that it could move in favour of
masterly inaction — since that carries lower risks
than action which could be questioned by the
judiciary. It has begun to happen in the country.
Let it not proceed further.
I realise how difficult the task is — that of
intervening ‘just enough’, and when to say ‘Nay’
even when ‘public opinion’ suggests an ‘Aye’. There
are enough landmark cases in the UK and the US
Supreme Court to suggest general principles of when
to intervene in legislative and executive matters,
and how. I believe that we should study these well.
Intercede when we must, while genuinely respecting
the separation of powers and, thus, in avoiding
overreach. Can we?
Published: Business World, December 2013