Democracy
dictates a system in which every citizen can without fear of retribution
breathe, express himself, pursue his or her interests and in short, live a life
of his or her choice as long as it is wholesome and does not tread upon the
rights of others to live their lives with equal felicity. This presupposes a
system of balances and counter balances among various specifically identified
functional components, which together create, support and nurture the
democratic system. The Legislature, the Judiciary and the Executive, are the
components of such a system.
In a
healthy democratic system, each of these segments, pillars as it were, has its
own importance and relevance. To segregate one from another altogether into
watertight compartments would be less than reasonable, basically because one
cannot forget the linkages and interdependence among them to quite an extent.
All the same, for a democratic system to function in a healthy atmosphere,
conducive to the meaningful sustenance and purposeful progress of the citizens,
it is necessary, to chalk out specific areas of domain for each of these
pillars with least encroachments on it from any of the other. Such separation
of powers is unmistakable by its presence in all-modern constitutions that
support a truly democratic system.
The basic
concept of the separation of powers would mean: (a) the same persons should not
form part of more than one of the three organs of the government (b) that one
organ should not control or interrupt with the working of another, and (c) that
one organ of government should not exercise the functions of another. The
innate provisions of freedom, democratic governance and law are most secure
when the three organs of the system function independent of one another. Such a
system is essential for the functioning of the democracy.
The French
jurist, Montes-quieu, had this to say - “ When the legislative and executive
powers are united in the same person, or in the same body of magistrates, there
can be no liberty. Again, there is no liberty, if the judicial power were not
separated from the legislative and executive. Were it joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. Were it joined to the
executive however, the judge might behave with violence and oppression. There
would be an end to everything, were the same man, or the same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of
individuals.”
The
Legislature is primarily concerned with enactment of general rules of laws that
are germane to all aspects of the conduct of its citizens and institutions.
Basically this highlights that it is the will of the people, the sheet anchor
of any democratic system that is reflected in the formation of the Legislature,
which determines for the common good all the laws, and regulations that are to
be followed. Evolving such a legal system of rules and regulations is one
thing, but pursuit of activities according to them within the framework of the
main system has other facets, which bring in the other two pillars like the
Judiciary and the Executive.
Judiciary,
as an independent specialized legal system of interpretation and enforcement of
laws and regulations, untrammeled by the Legislature and Executive is
absolutely unavoidable in any healthy democratic system. The functions of the
Judiciary transcend the simple determination of disputed questions of fact and
law and encompass an altogether new dimension of even discharging legislative
functions of a different character and caliber without encroaching upon the
domain of the Legislature. This refers to the evolution of case-laws that arise
from interpretation of the rules, laws and regulations laid down by the
Legislature, of course, consistent with the basic structure of the
Constitution. It would not be an exaggeration to say that the interpretation by
the Judiciary of the laws and regulations as also the evolution of case laws
add flesh and blood to the basic structure of the Constitution which reigns
supreme under all circumstances. In a mature democracy, it is important that
judges are independent both of Parliament and the Government.
The third
pillar namely, the Executive is also expected to be as independent as possible
and free of intrusions from the other two. All along it has been said that
Executive is the third pillar of democracy, which is independent of the other
two. Please do bear with me if I say that the independence that is expected of
this pillar is only in theory and mostly eroded in actual practice. How can we
expect to have an Executive to function independently when each of its actions
is questioned and its functioning is made regularly actionable by and
accountable to the independent powers enjoyed by the Legislature and the
Judiciary? Large number of regulations exist to constantly keep the actions of
the Executive under the watchful glare of the Legislature and the Judiciary and
that unquestionably takes away the much bandied-about independence of the
Executive. Controls and provisions for interpretations and answerability are
also applicable to the Legislature and the Judiciary but in their cases, a
built-in system from within would be available for discharging those functions.
What happens with the Executive in actual practice is nowhere near such a state
of affairs.
However,
in as much as the legislature/ government is answerable and accountable to the
people for the actions of the Executive, their control over the Executive is
inherent in the Constitution. But the frequent and uncalled for intervention of
the judiciary will torpedo the functioning of the government.
It is in
this background that the recent loud thinking of the Chief Justice of India
Justice S.H.Kapadia gathers significance.
Justice
S.H. Kapadia on April 16 cautioned judges against overreach in the guise of
judicial activism, and said they should not ignore the separation of powers as
enshrined in the Constitution and become administrators to make policy choices
and run the administration.
Delivering
the M.C. Setalvad lecture on ‘Canons of Judicial Ethics,' organised in New
Delhi by the Bar Association of India, the CJI noted that after 1980 the court
changed its direction to secure the rights of citizens from arbitrary actions
of the executive and to create a human rights jurisdiction by an enlarged
meaning of Articles 14 (right to equality) and 21 (right to life).
The court,
acting on public interest litigation, passed several orders and the
jurisdictional peg on which it was done was that such matters affected the
‘life' of the citizen under Article 21. “Its jurisdiction is that the other
branches of government have failed or are indifferent to the solution of the
problems. In such matters, the court is acting in advance of the political
branches of the government. [However] We do not have the competence to make
policy choices and run the administration.”
At the
outset, the Justice Kapadia made it clear that all views expressed here were
his own and in his capacity as a student of law, and not as CJI. He said that
by and large the orders passed by the court on PIL petitions were considered
necessary and welcomed by the public. However, “judicial activism which is not
grounded in any textual commitment to the Constitution, unlike activism in
cases of human rights and life and personal liberty, raises questions of
accountability of the judiciary.”
The CJI said:
“The judges of the Supreme Court should revisit the original constitutional
proposition that courts do not substitute their social and economic beliefs for
the judgment of legislative bodies, which are elected to enact laws. We are not
concerned with the wisdom, need or appropriateness of the legislation. We must
refuse to sit as a super-legislature to weigh the wisdom of legislation.”
On ethics,
he said: “The judge should not accept patronage through which he acquires
office, preferential treatment or pre-retirement assignment. These can give
rise to corruption if and when quid pro quo makes a demand on such judges.
Similarly, when a family member regularly appears before a judge, an adverse
public perception can affect the working of the integrity institution like the
judiciary.”
“We are
fond of giving lectures. Laying down a ‘Restatement of Values' is simply not
enough, but now the time has come to practise what we preach,” said the CJI,
whose speech was received with ovation.
“We,
judges, should remember that the validity of our decisions cannot rest on
popularity. Resisting the pressure to please the majority is the strength of
the judiciary, not its weakness. Judges inevitably end up in the political
arena in deciding controversial cases — whichever side they rule.”
Justice
Kapadia was categorical that political protection should not be given to
corrupt judges.
On judicial
accountability, he said it is a facet of judicial independence. The legislature
is accountable to the electorate. The executive is indirectly accountable to
the people through the elected legislature. There is no reason why the
judiciary should not be accountable to the community for its due performance of
the functions vested in it. Power is given on trust and judicial power is no exception.
Like other public institutions, the judiciary must be subject to a fair
criticism.
Justice
Kapadia's remarks were echoed by Delhi High Court Chief Justice Dipak Misra,
who welcomed public accountability on the part of judges. They should not harbour
any misconception of being divine incarnations.
Earlier,
Bar Association of India president Anil Divan set the tone for the occasion, saying
the country was facing an unparalleled crisis in its legal system.
The CJI
earlier said if a judge wanted to avoid accusations of being partial, then he
must inevitably be a little aloof and isolated from the community at large.
"A
judge must inevitably choose to be a little aloof and isolated from the
community at large. He should not be in contact with lawyers, individuals or
political parties, their leaders or ministers unless it be on purely social
occasions," he said terming these as certain obvious restrictions for a
person who enters the judges' world.
Enjoying a
high reputation for his personal and professional integrity, the CJI read out a
list of dos and don'ts for the judges, though he clarified that these were his
personal views knowing that most of these were observed in breach, especially
in the high courts.
“The man
who is only interested in himself is not admissible”, for a judge must have a
habit of thinking impersonally without regard for worldly advantages or
disadvantages of an opinion or an action, Justice Kapadia said.
The speech
of the CJI, although he himself stated it humbly as his personal view as a
‘student’ of law, constitute a sound message not only to the judiciary but for
all branches of democratic civil society. For instance his dispassionate appeal
to judges to keep aloof from society, which was practised by justices of
yesteryears, has a social relevance. For example, if parents of students who
are aggrieved over the exhorbitant fees collected by private educational
institutions, find judges participating in the functions of these institutions,
they will logically get dissuaded from approaching the courts presided over by
those judges, for seeking legal remedy.
His
another appeal that judges should not be carried away by ‘popularity’ is also
most relevant in the present context. The sense of popularity is ‘planted’ by
the ‘influential’ English media both electronic and print, which hold and
emanate perverted concept of democracy. They are keen on breeding apolitical
sense among people in their antipathy for a section of the political class,
without realizing the danger to democratic system. It is notable that none of
these media, which project certain intemperate oral remarks of some judges
against politicians, choose to write editorials and articles and conduct debates
and discussions in News channels on these remarks of the CJI and played it
down. The judicial stay that reactionary and communally obscurantist elements
could get in the execution of the century old dream project of Tamils, the
Sethu Samudram project is a classical example for the judiciary being misused
against economic and social progress and development of the country.
The CJI
Justice SH Kapadia well deserves the gratitude and thankfulness of democratic
polity, politicians and people as a whole for most timely speaking out his
mind. Hopefully his views will percolate into positive response!
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