Separation of powers: The myth and reality
The Third Nani A. Palkhivala Memorial Lecture by Bimal Jalan
It is a great privilege for me to deliver the Third Nani A. Palkhivala Memorial Lecture before this distinguished audience. I am grateful to Mr. Malegam, one of the most thoughtful and dedicated persons that I know, for giving me this opportunity.
Mr. Palkhivala’s unparalleled and multifarious contributions to our national life are, of course, well known to you. As an eminent lawyer, who guarded our cherished freedoms through a difficult period in our democratic history, his most celebrated and seminal contribution was in the Kesavananda case in 1973 and its political aftermath. Although the memory of Mr. Nani Palkhivala will be cherished by us, and generations yet unborn, for his unequalled achievement as a lawyer in defence of freedom, his contributions in many other fields were equally remarkable. Who can forget his annual speeches on the Union Budget in the vast CCI grounds? These speeches were attended by a large number of concerned citizens in addition to well-known intellectuals and professionals in different walks of life. His humility and accessibility was also legendary, as was his role in promoting several prominent charitable institutions, non-governmental organizations and think tanks.
Today, the day of his birth, is a day to pay homage to his memory and remember his countless achievements as an Indian. It is also a day when we should reflect on and celebrate the virtues of our democratic system. It is useful to recall that at the time of our independence in 1947, there was worldwide skepticism about the future of India as a united democratic republic. Considering its immense regional, linguistic and religious diversity, there was a widespread view that India might soon break-up or at least go back to an authoritarian regime of some kind.
It is a tribute to the sagacity and farsightedness of the framers of our Constitution that today, as we look back, India has not only survived as a Democracy but, despite some areas of concern, it has won world-wide admiration as one of the fastest growing developing countries with strong social, cultural and economic bonds across regions. This would not have been possible but for the contribution made by persons like Mr. Palkhivala to strengthen the foundations of a democratic and secular India.
On this occasion, with your permission, I would like to eschew the professional temptation to give a discourse on the state of India’s economy or its economic future! Instead, I propose to briefly share some thoughts with you on a larger political and constitutional issue which figured prominently in the public debate in Mr. Palkhivala’s time, namely, that of the “Separation of Powers” between legislature and the judiciary in our country. The issue has once again been debated recently and has attracted the attention of some of the leading legal luminaries and political leaders. It was also the principal item on the agenda of the Emergent Conference of Presiding Officers of Legislative Bodies in March 2005.
I should clarify that, unlike several others who have recently commented upon this subject, my views are largely that of a citizen-observer who has no particular professional background in law or in electoral politics. I am sure you will agree that constitutional issues on the functioning of our democracy are far too important to be left to be determined by legal and academic experts, or for that matter, by the institutions involved. As citizens, we have an equal, if not greater, stake in the outcome of the recent debate on separation of powers among the vital organs of our State.
As is well-known, the debate about the doctrine of separation of powers, and exactly what it involves, is as old as the Constitution itself. It was extensively debated in the Constituent Assembly. It also figured in various judgments handed down by the Supreme Court after the Constitution was adopted. Although the controversy on defining the precise boundaries of powers of different institutions has recurred from time to time, there is nonetheless a broad agreement among all concerned on some fundamental points.
Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our Constitution. It is also commonly agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another. It is assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work in harmony and in tandem to maximise the public good.
While there is a broad agreement on the above principles, in practice, from time to time, a dispute arises whether one organ of the State has exceeded the boundaries assigned to it under the Constitution. This was the case in 1973 in Kesavananda case, which I mentioned earlier, when the power of the legislature to amend the Constitution was considered by the Supreme Court. The Court confirmed that the “basic structure” of the Constitution was an unalterable feature of our Constitution which could not be amended even by an Act of Parliament. In 1975, however, this view was challenged by the then government before a special bench of the Supreme Court. It was argued that Parliament was “supreme” and represented the sovereign will of the people. As such, if the people’s representatives in Parliament decided to change a particular law to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not. Fortunately, after listening to the persuasive legal argument of Mr. Palkhivala, the then Chief Justice of India decided to dissolve the Bench, and the “basic structure” doctrine was re-affirmed as an unalienable feature of our Constitution.
The issue of the relative jurisdictional boundaries of the organs of the State has acquired a new momentum in the recent period in the context of coalition politics at the center and in states. Thus, during state elections in early 2005, in some states, particularly Jharkhand, Goa and Bihar, no party or a coalition of parties had a clear majority. The situation was further complicated by the fact that neither the Governors of these states (who had the final powers to appoint a government) nor the presiding officers of the legislatures (who had the powers to conduct the proceedings of the House where the majority claimed by the new government was to be tested) were considered to be impartial in their decisions. Irrespective of the intrinsic merits of the decisions taken by any of these constitutional authorities, an appeal to the Courts by aggrieved parties, therefore, became unavoidable.
Thus, in Jharkhand, after the elections in March 2005, the Governor was pleased to swear-in a government headed by a member of the Union Cabinet, who did not seem to have a clear majority. He was also given a number of days to prove his majority on the floor of the House. The opposition parties, who claimed to have a majority, were extremely upset by this decision of the Governor and filed a writ petition in the Supreme Court challenging the decision of the Governor. On March 9 2005 the Court passed an order, which inter alia gave directions to the Speaker to extend the Assembly session by a day and conduct a floor test between the contending political alliances. In the light of Court’s decision, the earlier government formed by the Union minister decided to tender its resignation on the advice of the central government. An alternative government was then formed by a combination of other parties which was able to prove its majority on the floor of the House.
The directions of the Supreme Court to the Speaker of Jharkhand Assembly raised a legal storm, as these were interpreted by several experts as intruding into an area which was within the jurisdiction of the legislature. This view was also endorsed by an Emergent Conference of the Presiding Officers of Legislative Bodies of India which was convened at short notice on 20 March 2005 to deliberate on the Constitutional issue arising from the verdict of the Supreme Court. In no uncertain terms, the Presiding Officers expressed their concern over “such orders passed by the courts repeatedly which tend to disturb the delicate balance of power between Judiciary and Legislature and appear to be a transgression into the independence of the Parliamentary System of our Country”.
On 23rd May 2005, the controversy relating to the Supreme Court directions in the Jharkhand case acquired a new dimension. This time, it related to the action taken by the President of India to dissolve the Bihar assembly on the recommendation of the Governor of the state, and the advice of the Union Cabinet. Over the previous few months, the state was under President’s rule, and the Assembly was in suspended animation as no party or combination of parties had emerged with a clear majority in the earlier elections in February 2005. The legislators belonging to some minority parties had become restive, and there were strong rumours that some of them were likely to join a coalition of parties which were opposed to the previous ruling party (the Rashtriya Janata Dal) in the state, which was a member of the ruling coalition at the center. On grounds of alleged “horse-trading” among legislators, the Governor suddenly decided to recommend dissolution of the assembly to the Union Cabinet, and through it, to the President, who was then on a state visit to Moscow. The recommendation was duly accepted late at night in Moscow and the assembly was dissolved. Some of the affected legislators filed a case against the action taken by the executive branch.
The centre’s legal position in this case, as filed in an affidavit before the Supreme Court was that “the Court is not to inquire – it is not concerned with – whether any advice was tendered by any minister or council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his council of Ministers”. In other words, according to the government’s view, the Council of Ministers could advise the President to pass any order (irrespective of its merits); the President had no option but to accept that advice under the Constitution; and the Court had no right to examine whether the action of the executive was legal or not.
After hearing the arguments, in October 2005, the Supreme Court gave a summary verdict declaring the action of the government to dissolve the Bihar assembly as being “unconstitutional” and unreasonable. The Court, however, did not order the revival of the old assembly as fresh elections had already been announced by the Election Commission and were scheduled to take place after a few days. The Court’s verdict caused considerable public embarrassment to the government since the decision to dissolve the Assembly was taken by the President at a very short notice on the advice of the Union Cabinet.
Even before the hearings in the Bihar case were completed, in August 2005, another controversy arose on the Court’s judgment regarding reservation quotas in unaided private engineering colleges. The court ruled that if quotas were necessary, the government should make the appropriate amendment in the relevant Acts. Otherwise, mandatory reservation quotas in unaided colleges were not legal. This judgment of the Court raised vociferous objections from all sections in Parliament, cutting across party lines. No party was willing to offend the beneficiaries of such quotas pending the passage of relevant legislative amendments.
I have briefly mentioned these recent cases, as I believe that a closer examination of the reasons for the differences of views on separation of powers would help us in considering where the boundaries should be drawn on the judiciary’s powers to determine the legality of actions taken by the Legislature and/or the executive branch. Let me now deal with some of the broader issues of principles involved. I will come back to these specific cases a bit later in this talk.
In theory, and in principle, both sides of the argument on the doctrine of separation of powers have some validity. Thus, it can be rightly argued that Parliament is the supreme law-making body, and the courts should not pass verdicts which have the effect of changing the legal position as approved by Parliament. It can also be pointed out, with some justification, that some court rulings in the past were wrong in law and had to be over-turned by subsequent rulings by a higher court or a larger bench of the Supreme Court. The Supreme Court, therefore, cannot be considered to be infallible.
Similarly, it is true that, prima facie, some of the past Constitutional judgments were indeed protective of private interests. For example, soon after independence, in 1951, several court rulings overturned land reform measures as being violative of the fundamental rights of landowners. The government, led by Jawahar Lal Nehru, had to amend the Constitution to implement land reforms, which were considered vital for country’s economic and social progress. Similarly, in 1970, the Supreme Court had also ruled against nationalization of banks, undertaken by Mrs. Indira Gandhi’s government. Special legislation was passed by Parliament to make nationalization possible. A number of other instances could be cited where the judgment of the Supreme Court or other courts was not in line with popular expectations.
While all these arguments have some validity, keeping in view the recent political developments at the center and in the states, I am firmly of the view that, on balance, the long term interests of the public and the ordinary citizen are safer if the Supreme Court continues to be the watchdog of India’s democratic conventions and final arbiter of the constitutional validity of any law or action approved by the legislature or the government of the day. It is no accident that the political pressure to limit the powers of the judiciary and declare Parliament as being “supreme” and representative of the will of the “People of India” is the strongest when a coalition government of parties with varying agenda is in power or when the political survival of the undisputed leader of the majority party is threatened. In these circumstances, political survival becomes more important than the legal merits or demerits of a case.
The above view is not meant to detract from the great merits of the Parliamentary system of government in unifying India and giving us the freedoms that we, as the people, cherish. Thanks to the resilience and vibrancy of this system, India is now the world’s largest functioning democracy, with a free press, freedom of speech, freedom to join or leave political parties, and free elections in which the largest number of voters in the world cast their votes and choose their government. Without doubt, for all of us, unlike our counterparts in a large part of the developing world, these freedoms constitute a tremendous personal, social and political gain of which we can be justly proud. For the reasons that I have elaborated elsewhere, in my view, this established and well-tried out system of the parliamentary form of government is also the most viable and the best for India.
At the same time, we have to recognize that in the last sixteen years - from 1989 to 2005 – there have been some fundamental changes in the morale, objectives and the style of functioning of our national as well as regional political parties. These changes are a result of what is widely referred to, and accepted, as “the compulsions of coalition politics” and relatively short terms of office of governments in power. Since 1989, the country has undergone as many as six general elections, and multiple coalitions of different parties have ruled the country. There have been seven governments (not counting the present government), several of whom had tenures ranging from a few months to about one year. Prior to 1989, in the first 41 years of independence, six Prime Ministers had ruled the country, of whom only three had tenures of less than five years. After the most recent elections in 2004, the new coalition that has taken over the reins of government is dependent on the inside and outside support of several parties of the right and the left - from inside and outside.
In principle, Parliament still continues to be supreme, and the cabinet is accountable to it. In practice, however, the accountability of the executive to Parliament has become somewhat perfunctory and pro-forma as long as the government has the majority support of a party or a combination of parties. The power of the leader of a party over its members is supreme and unquestioned, and what happens in Parliament now – with occasional exceptions – is largely determined by the immediate political interests of different parties rather than by intrinsic merits or demerits of actions taken by the executive.
The expectation that the tenure of a government is going to be short has had several unintended consequences. Ideology and programmes have become relatively less important, and any party (of whatever type) is willing to combine with any other party for possible political or electoral gain or seats in the Cabinet at the center or in states. Some parties have split several times to gain temporary electoral advantage, and some parties have moved from one side to another in order to join the government. The number of parties fielding candidates for elections has multiplied, and it is difficult to distinguish among the programmes or ideologies of most parties. As many as 55 parties contested the 2004 elections, with various kinds of inter-party alliances.
An important consequence of the recent political developments has been the dominance of smaller parties by a few individuals, and absence of intra-party democracy in most parties. Some parties, whether large or small, have only one or two leaders who choose the party’s candidates for elections. The leaders also decide who will become members of the government led by another party and who will be sent to Rajya Sabha, the Upper House of Parliament. Most of the smaller parties have a narrow social base, but their leaders enjoy considerable political power in view of their ability to swing relatively small numbers of votes in favour of another party, particularly in marginal seats.
The functioning of Parliament and state legislatures in recent years has also been examined in detail by the recent National Commission to review the working of the Constitution. The Commission’s observations are worth noting:
“If there is a sense of unease with the way the Parliament and the State legislatures are functioning, it may be due to a decline in recent years in both the quantity and quality of work done by them… Even the relatively fewer days on which the houses meet are often marked by unseemly incidents, including use of force to intimidate opponents, shouting and shutting out of debate and discussion resulting in frequent adjournments. There is increasing concern about the decline of Parliament, falling standards of debate, erosion of the moral authority and prestige of the supreme tribune of the people”. (p.105)
The report of the National Commission was presented to the then government in March 2002. Since then, there has been further drift in the functioning of Parliament. The latest example of this phenomenon was witnessed on 29th August 2005. On that day, a day before the end of the monsoon session, the Rajya Sabha adopted an important women’s succession bill in four minutes flat in the midst of shouting and shutting out of any debate and discussion on the Bill. Members were not even able to hear the Minister rising to introduce the Bill. The clause by clause consideration was also taken up without any member being able to speak or comment in the midst of a disrupted and noisy house. Then, the bill was passed by a “voice vote” without members even being aware that the Chair had asked for such a vote. Fortunately, this particular Bill was concerned with providing equal treatment of persons, irrespective of gender, in respect of inheritance and it enjoyed wide public support. However, what was alarming was not the contents of the Bill, but the way in which it was passed. Based on this precedence, at least in principle, any other bill, whatever its contents, is capable of being passed in the same way.
The shrinking role of Parliament in the functioning of India’s democracy was also eloquently demonstrated a year before the above proceedings. On 26th August 2004, contrary to convention and well-established rules of procedure, Parliament decided to suspend the question hour, and pass the regular budget involving an expenditure of more than Rs.4,75,000 crore without any discussion within a few minutes. This was the result of a backroom agreement between the leaders of parties in the government and the opposition, following several days of disruption of parliamentary work because of a dispute on a sensitive, but extraneous, matter.
The sum total of the recent developments in India’s party politics is that the Parliament now does what the handful of leaders want, as long as their parties have a combined majority of seats in Parliament. Normally, all members are free to ask questions, raise issues of public importance, and pass laws after due consideration. The Standing Committees of Parliament also spend considerable time and effort to examine issues of public importance, and submit their report to the two Houses of Parliament for consideration. A recent positive development is the setting up of an Ethics Committee in Rajya Sabha, and an emerging consensus in both Houses to reduce unethical conduct by their members. However, a crucial point to note is that, with some occasional and welcome exceptions (as in the recent case of expulsion of some members of Parliament for accepting cash for questions), what the Parliament may be asked to do is in the immediate electoral interest of the parties in power rather than the interest of the people as a whole. As elections have become frequent, and are held at different points of time in different states and the center, electoral compulsions have also become more pressing.
In this situation, it does not seem prudent or politic for the ordinary citizen of India to confer supremacy to legislature without accountability. The legality of executive action must continue to be subject to judicial scrutiny, however high the level at which such decisions have been taken. As is well known, in recent years the ministries have become increasingly subject to the unilateral policy preferences of individual ministers who happen to be in office at a particular point of time. There is seldom any worthwhile public debate or constructive dialogue on matters of long term public importance. A recent example of the exercise of power by a minister in office, which would have had a long-term impact on the quality of management education, was the decision announced by his ministry in March 2004 to drastically reduce the financial autonomy enjoyed by the Indian Institutes of Management (IIMs). This decision was made by the then minister without approval of the cabinet or a debate in Parliament. After the change of government in May 2004, the new minister rightly decided to reverse the decision. The decision of the new minister was widely welcomed by the IIMs, and was in the country’s overall interest.
However, the issue here is not whether the decision taken by a particular minister on behalf of his ministry was right or wrong. The issue here is one of long-term public interest. If a minister is able to turn the education system of the country one way or the other without adequate discussion and accountability, what stops him or her from passing laws or rules which have adverse long-term impact on the welfare of the people as a whole, or sections of the people who are not aligned to his or her party?
As mentioned earlier, the Supreme Court and other Courts are not infallible, and have also given judgments which had to be reversed in subsequent hearings. Courts are by no means full of noble sages, but they do provide an additional recourse to restrain excesses by the executive. From the point of view of an average citizen, the great advantage of the judicial review of decisions taken by the executive and the legislature is also that everyone, irrespective of his or her beliefs or political affiliation, has access to courts. This is not the case in respect of the executive or the Parliament. The free media does play a constructive role in enforcing a degree of accountability on government, but that by itself is not enough.
The other advantage of judiciary being the arbiter of legality or otherwise of an executive or legislative decision is that, even if a particular verdict is wrong or socially unacceptable, it is subject to review and reversal. This not usually the case with legislative or executive decisions unless the government of the day so decides. A citizen has no legal right to ask for a review of decisions taken by the legislature or the executive, even if they are not in the public interest. The recent Right to Information Act is an important step forward in making the executive accountable to the people directly. However, in case of any unjust or partisan decisions taken by the government, the remedy would still lie with the Judiciary.
Against the above background, let us briefly consider the merits of three recent cases which I mentioned earlier regarding the alleged incursion of the judiciary in areas belonging to the legislature or the executive. Thus, in respect of the directions given by the Supreme Court to the Speaker of the Jharkhand assembly in March 2005, it is certainly possible to take the view that the court went a bit too far in telling the Speaker exactly what to do (including, for example, asking for a video recording of the proceedings). However, there is very little doubt that the partisan action to swear in a government which did not have a majority, followed by efforts to prevent an alternative government from being formed by another combination of parties was against all canons of fair play and long-standing legislative conventions. Let us suppose, for the sake of argument, that the Supreme Court had dismissed the case on the ground that it could not intervene in a case involving the Speaker’s action in the Legislature. Would the refusal of the court to hear the case helped the country or the average citizen in upholding their fundamental democratic rights?
In this connection, I should mention that the Hon’ble Speaker of the Lok Sabha in his Nani Palkhivala Memorial Lecture on 12th May 2005 before the Bar Association of India has raised an important and legitimate issue. He has rightly asked the question: what would have happened if the Supreme Court order could not be implemented by the Speaker because of the disturbances and disruption by the members of the Legislature in the House? Would the judiciary have been able to deal with the situation or file a case of contempt against the Speaker and members of the House? In case the Court’s directions could not be implemented and the Court was unable to secure the enforcement of its order, the country would have been faced with a most difficult situation and a Constitutional deadlock.
The point is well taken. However, it does not resolve the basic issue of instituting a mechanism for protecting the democratic rights of citizens (and, for that matter of a large body of elected members of a legislature) in the event of an unwarranted exercise of discretionary powers by the Governor or the government or the Speaker – or a combination of them. The enforcement of Court’s orders in all democracies are ultimately the responsibility of the executive in power which exercises authority over all enforcement agencies of the State. Ultimately, Courts themselves have no direct means of enforcing their orders – whether these orders relate to individuals, organizations, government or any other entity. If the executive, with or without approval of the legislature, decides to exceed its constitutional authority and ignore Supreme Court’s orders, there is nothing that the Court itself can do, except re-iterate or revise its orders. If, because of the inaction of the executive, there is a constitutional breakdown, the ultimate remedy lies only with the people.
In the case of Bihar, in view of fractured electoral verdict in February 2005, the Governor was pleased to recommend the imposition of President’s rule without dissolving the assembly. However, after patiently waiting for three months, all of a sudden and without any notice or discussion with different political parties, in May 2005, he felt compelled to recommend that the assembly should be dissolved immediately. The Union Cabinet considered it appropriate to meet late at night and advise the President, who was on a state visit to Moscow, to approve the Governor’s recommendation during the course of the night itself. The reason for this great urgency three months after the election is not at all clear. Again, let us suppose, for the sake of argument, that “horse-trading” among legislators was actually taking place. What was the compelling reason for His Excellency the Governor not to have the matter investigated by state authorities? If the Governor of a State is inclined to take a politically partisan action, what is the remedy available to the ordinary citizen or affected legislators except to appeal to the judiciary?
In the Bihar case, one related issue which has caused some legal controversy is the timing of the initial summary verdict of the Supreme Court in October 2005 without explaining the full rationale. It has been argued that, even without the Court’s summary judgment, state elections would have gone ahead anyway. The Court’s incomplete summary verdict did not change the course of events, and gave rise to an avoidable controversy about the decision taken by the Head of State on recommendations of the Union Cabinet. This is a reasonable observation and it would have certainly been better if the Court had given its decision in full. However, it does not deflect from the main point that an important decision taken by the Union Cabinet in a hurry on the Governor’s recommendation was not adequately supported by available facts on the ground.
Finally, in the case involving quotas in unaided engineering colleges, it is legitimate to take the view that, subject to certain conditions, such quotas are socially desirable and justified. However, the question that deserves an answer is: what is the harm done to society if the courts rule that imposition of quotas is not permissible under prevailing laws? In that case, the legislature is free to pass the necessary law. This is precisely what was done in the last session of the Parliament. In case the earlier view was that those who had already been admitted under quotas could be adversely affected, the Courts could have been requested to allow for time for the necessary legislation to be enacted without affecting the present beneficiaries.
The position in the United States in respect of separation of powers, enshrined in its Constitution for well over two centuries, is also of some relevance to us. In the United States, the head of the executive branch, the President, and his Cabinet are not members of the Congress. The justices of the Supreme Court are appointed for life after being nominated by the President and approved by the Congress. However, once appointed, they are accountable to no other branch of the State. Their job is to uphold the Constitution, which empowers them to overrule other branches of the government. The Supreme Court is the final arbiter of the Constitutional limits of the powers of the legislature and the President.
As is the case in India, all the judges of the Supreme Court are entitled to take their own separate views on the intent of the Constitution and vote accordingly. However, in the U.S., each judge is appointed for life, and the President and the Congress have only limited flexibility in influencing the Court’s composition during their tenures. Whenever a vacancy occurs, there is, therefore, considerable public excitement and scrutiny of the ideology and legal credentials of the Presidential nominees. Some of the famous decisions of the Court, for example in the Roe vs. Wade verdict in 1973, which legalized abortions under certain circumstances, or the recent 2005 Kelo vs. New London decision which expanded the government’s power of “eminent domain” (by a narrow 5-4 majority) and allowed state governments to erase private waterfront houses, have aroused considerable public controversy among different ideological groups. The Roe decision expanded private rights, and the Kelo decision severely restricted it under certain circumstances. However, while the arguments about the merits of these and other decisions have been intense, and review petitions have also been filed, no one has questioned the unfettered right of courts to review whether decisions taken by Congress and State Legislatures are in conformity with the Constitutional provisions.
Keeping in view our own experience as well as the experience of other democracies, it is clear that a rigid demarcation of legal powers among different branches, irrespective of the specific circumstances, is neither feasible nor desirable. By and large, under normal circumstances, there is no doubt that it is appropriate for different branches of the State to work in harmony and confine themselves to their primary tasks as enshrined in the Constitution. Parliament as the highest representative body, should also have the unquestioned authority to pass laws which it considers appropriate. The executive branch should be accountable to Parliament, and should have full administrative powers to implement laws and programmes as approved by Parliament. And, the judiciary should give verdicts and settle legal disputes as per the laws of the land. Most of the time, in all mature democracies, there should also be no cause for jurisdictional conflict among different organs of the State.
However, there are times when sectional interests, and “compulsions of coalition politics” can become the primary drivers of the laws passed by Parliament and/or administrative actions taken by the executive. Some of these laws and executive decisions may run counter to the intent of the Constitution and adversely affect the fundamental rights of the public. If the political majority in Parliament is fragmented, and there is a serious conflict, ideological or otherwise, among coalition partners, some Parliamentary decisions may reflect sectional electoral interests rather than the long-term interests of the people as a whole. There may also be times when the political or private interests of a supreme leader or a group of leaders may be under public scrutiny because of certain exogenous or endogenous developments. In such exceptional, and hopefully infrequent circumstances, it is necessary to have a court of last resort to decide on the constitutional validity of specific laws or actions initiated by the legislature or the executive. The final legal arbiter in such cases can only be the judiciary, which is directly accessible to the public, and whose verdicts are in any case subject to review and appeal.
All Indians are justifiably proud of their Parliamentary democracy and their multiple freedoms. The preservation of these freedoms is also a primary goal of the Indian Constitution. There can be no compromise on this score, whatever be the short-term interests of political parties and governments, which are temporarily in power as agents of the State. It is the responsibility of the judicial system, as a separate agent of the State, to provide a measure of protection to the people against excesses committed by other public institutions.
It is, of course, true that the judiciary can also make mistakes. Thus, thirty years ago, at the time of Emergency, the highest Court in the land had endorsed several extra-constitutional Acts passed by the legislature at the instance of the executive. In view of the enormous delays and multiple levels of appeals, it can also be argued that judicial system itself is in urgent need of reforms in order to provide speedy justice. However, even after taking all these imperfections into account, I have no doubt that, on balance, the country is better off with judiciary as an additional check-point on legality of action taken (or, for the matter, not taken) by the legislature and the executive. It should be free to issue appropriate directions to any agency of the State if its actions are considered arbitrary, partisan and violative of the intent of the Constitution to give India a government of the people, by the people and for the people.
Let me end with two quotations from Nani Palkhivala from his book “We, the People”, published in 1984. Commenting on the solemn declarations made by parliamentarians from time to time as being supreme representatives of the will of the people, he had this to say :
“The myth that Parliament’s will is the people’s will was exploded at the election held in March 1977. Did the Parliament which [had earlier] passed the Forty-Second Amendment and which also approved of the proclamation of the emergency, represent the will of the people? It is inconceivable that after having provided the most complete and comprehensive guarantees of the basic human freedoms known to any constitution of the world, the Constitution-makers still intended that any Parliament could take away those fundamental rights” (p. 209 & p.216).
And finally, on the sanctity of the Constitution, he reminded us and the generations yet to come:
“The Constitution is not a structure of fossils like a coral reef and is not intended merely to enable politicians to play their unending game of power. It is meant to hold the country together when the raucous and fractious voices of today are lost in the silence of the centuries” (p.xv).
Mr. Palkhivala’s vision of a fast growing, free and empowered India is now closer to reality than ever before. I hope that all our people and all our institutions, public and private, will continue to work together, in harmony, to fully realize our national goals. – Thank you