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      The Case Against Overreach         

Omkar Goswami


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


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