Kanishka Bhukya
INTRODUCTION
Deng Xiaoping, the former Chinese leader, had appealed angrily to the United States Secretary of State regarding a federal court ruling concerning a Chinese airplane. He requested that the State-Secretary instruct the court to reverse its decision. The latter however refused, citing a violation of the principle of “separation of powers”. Deng Xiaoping inquired, “Well, what is the separation of powers?” “I’ll send my lawyer to explain it,” said the State-Secretary.
Unlike Deng Xiaoping, we all know the conventional Indian response. How can one define “separation of powers”. According to Montesquieu, governmental power is divided among separate branches of the government (such as executive, legislative, and judicial) to prevent any one branch from becoming too powerful. To that end, the founders of the Constitution also split authority among three departments of the national government: the Legislature, to enact laws, the Executive to implement the laws, and the Judiciary, to ensure proper and fair application of the laws. Each arm is responsible for keeping a check on the other two. As clearly asserted by James Madison in The Federalist, “the greatest security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.”
In the seven decades since the Indian Constitution was drafted, the three-limb mechanism of checks and balances has matured, but not always graciously. Legislature is usually chaotic, the judiciary selectively expands/limits its own authority, and the executive branch has grown increasingly authoritarian. A cursory assessment of the functions of these different branches of government would support the idea that the Indian conception of “separation of powers” is a liberal blend of one kind of function with another type of function, and that the segregation is not as unyielding as it is in the United States. For instance, the Constitution established autonomous commissions to provide extra checks and balances on the political system, and it granted the President the authority to enact ordinances (legislative power), etc.
The article’s major focus, however, is on a more subtle and nebulous threat to the idea of separation of powers: the emergence of public interest litigation (PIL) during the last couple of decades, in which courts engage in both quasi-executive and quasi-legislative capacities. Therefore, in the context of the judiciary overstretching into the domains of the other branches of the government, this article proposes that Indian courts retrench their PIL jurisdiction by channeling public attention to the most outrageous failings of the executive and leaving the process of law-making to the legislature, drawing from the theories of constitutional dialogue.
QUASI-EXECUTIVE ROLE OF THE JUDICIARY
Recently, the judiciary has grown highly intrusive in that they have seized responsibility for activities that were previously seen to be the domain of other branches of the government. While noting the shortcomings in governance, courts have gone so far as to intervene more actively, going well beyond the adjudicatory and interpretative functions, rather than just flagging out the government’s mistakes and checking the arbitrary exercise of power by the executive. It has given explicit directives asking the executive to take certain measures or policies to rectify governance failures.
In that regard, Deepak Rana v. State of Uttarakhand is a noteworthy example, in which the petitioner contended that the public schools in Uttarakhand lacked necessary infrastructural and pedagogical amenities. Although the court appropriately took note of the dilapidated condition of schools and ordered the administration to provide basic supplies, the court went so far as to order that the state government refrain from purchasing luxury items such as mobile phones, cars, and so on for its members until it had successfully provided basic amenities in all government schools.
Shiv Kumar Pathak v. State of Uttar Pradesh is another case in which the court exercised a quasi-executive role. While hearing petitions about the recruitment of junior teachers at government schools, the court recognized the state’s poor condition of government schools and classified three sorts of schools: elite schools, semi-elite schools, and government schools. According to the court, there were several causes for the schools’ deteriorating condition, including maladministration, corruption, and so on, and it was determined that the majority of students were from low-income families. To that end, the court went above and beyond by directing the UP Chief Secretary to ensure that every employee receiving a salary from the state exchequer sends his or her children to government schools administered by the UP-State Education Board, so that these civil servants are incentivized to look after them. It also asked the Chief Secretary to draught penalties in the event of disobedience.
One can observe how the most remarkable feature of these decisions is the judiciary’s paternalistic attitude toward the executive. These directives are sometimes punitive in nature, attempting to impose difficulty on government employees in the expectation that they’ll take their jobs seriously. This, however, is outside the scope of permissible judicial intervention.
QUASI-LEGISLATIVE ROLE OF THE JUDICIARY
Indian courts have not only participated in judicial policymaking, but they have also played a significant role in the formulation and evolution of law. This section will discuss the role of the court in articulating norms and developing legal standards in response to societal requirements and welfare considerations.
Courts have been highly active in attempting to address citizens’ socioeconomic interests, leading them to circumvent elected officials and instead frame laws themselves. The case of TN Godavarman v Union of India may be an illustrative case of this approach. In this case, a writ was filed under Article 32 to safeguard the woodlands of Nilgiris from destruction caused by unlawful timber felling. One of the most important developments in this case was the court’s attempt to define the term “forest,” despite the lack of a specific definition in the relevant legislation. Prior to this decision, state governments had expressly confined the term “forest” to reserve forests; nevertheless, the court broadened the Forest (Conservation) Act’s protective framework. The court not only broadened the definition of “forest,” but also halted all wood-based activity, established its own monitoring mechanism via regional-level commissions, and essentially took control of the day-to-day administration of such forests. As a result, the court assumed the roles of policymaker, administrator, and interpreter during this exercise.
This is a textbook example of judicial overreach, as the court issued over 100 interim orders to review the High-Power Committee’s report, establishing a parallel executive machinery that the Constitution never envisioned. To that end, providing such flawed judgments and unrealistic legal interpretations undermines both the effectiveness of governance and the power of the executive.
THE SOLUTION: CONSTITUTIONAL DIALOGUE
Over the last few decades, there has been a dramatic change in the balance of power away from the legislative and executive and toward the judiciary. There are several causes for this phenomenon, but the most noteworthy is a degradation in the quality of politics and public life. Horse-trading, legislative and constitutional amendments enacted without serious discussion, a lack of legislative business and its systematic interruption resulting in wasted business hours, and so on characterize the current state of affairs in Parliament. The only institution that this author feels still has any legitimacy in the eyes of the people is the judiciary. As a result, it is often argued that the judiciary’s increased activism is in the best interests of Indian democracy.
However, despite the fact that it is in the best interests of democracy, a middle ground must be located so that the courts do not violate the concept of separation of powers. To that purpose, this section will present a solution for balancing all of the interests.
One paradigm of judicial review that has recently gained popularity is “constitutional dialogue.” Although this idea was conceived and implemented in western common law nations, Po Jen Yap expanded its applicability to Singapore, Hong Kong, and other Asian countries. According to him, a dialogic approach to constitutional adjudication entails that court judgements “do not foreclose the constitutional debate for the electorate and its representatives.”Instead, this dialogic approach acknowledges that justifiable differences on constitutional interpretation could be “constructively modified … but not impeded, by judicial input into the law-making process.”
Simply put, under dialogic review, courts would give constitutional rulings which would allow lawmakers to use the standard political process to engage constructively with those rulings, rather than rulings that mandate the terms of legislative compliance.
This approach of dialogic review can be considered to be one of the best alternatives because it envisages a court and legislature working together to settle constitutional disagreements in a way that capitalizes on each institution’s strengths whilst minimizing its shortcomings. This method is largely founded on the premise that lawmakers may inadvertently infringe on people’s basic rights and that the court may bring those infringements to the attention of the legislators. Dixon, for example, identified legislative blind spots as occurring when (1) lawmakers are overwhelmed with work and fail to recognize how a particular law may infringe an individual’s rights; (2) lawmakers do not take into account the perspectives of minorities; and (3) lawmakers only focus on one‘s legislative goals and do not make suitable accommodations for rights. And, it is believed that by bringing such infractions to light and allowing legislators to design their own remedies, these blind spots could be remedied via constitutional dialogue. More so, judges could enhance democracy while avoiding the pitfalls of counter-majoritarian politics.
CONSTITUTIONAL DIALOGUE: THE INDIAN CONTEXT
The question now is how this approach would perform in the Indian context. As many people are aware, India now operates under a framework of “judicial supremacy,” in which the court has the last word on constitutional interpretation. As previously mentioned, courts have used this supremacy to an unprecedented extent in socioeconomic and environmental rights matters, operating in quasi-legislative and quasi-executive roles.
However, even in such a situation, constitutional dialogue is conceivable. As Yap points out, while this approach is typically used in countries with a weak form of judicial review, courts with a strong form of judicial review, such as those in the United States, have also constructed doctrines to avert“politically sensitive constitutional questions” and make minimalist rulings that give the other two branches “constitutional space to disagree.”
The case of Vishaka v. State of Rajasthan was one such illustration of constitutional dialogue that was recognized in India. In the aftermath of a vicious gang-rape of a social worker in Rajasthan, various social activists and non-governmental organisations (NGOs) banded together to file a writ suit to safeguard the fundamental rights of working women. Justice Verma noted that there was no statute in India addressing sexual harassment at work and also noted a provision in the Constitution that states that the “State shall endeavour to … foster respect for international law and treaty obligations.”Because CEDAW outlaws’ discrimination against women, particularly workplace sexual harassment, and India is a signatory to the convention, the court drew on the text of the agreement to provide detailed guidelines for sexual harassment in the workplace.
One may argue that the court utilised quasi-legislative power in this case. However, there are important dialogical components in this. First, the government took principles from an international treaty that India had ratified. Second, and most significantly, the court said that these guidelines would be in effect only “until a legislation is implemented” by the government to address the issues presented in the dispute. A few years later, the legislature participated in constitutional dialogue and passed its own legislative solution to the problem.
CONCLUSION
This article attempted to summarise the tensions that develop when the courts’ PIL jurisdiction collides with the principle of separation of powers. It analysed cases in which the court overstepped its limits and exerted quasi-executive and quasi-legislative authority. Courts have highlighted governance failures and loopholes in the statutory system, particularly in situations involving environmental protection and socioeconomic conditions. To that end, it had correctly established deadlines and long-term implementation targets and participated in dialogic conversation with the administration through mandamus. However, courts jumped the gun by formulating specific rules and policies that quite often didn’t take into account the government’s budgetary and regulatory constraints. And, on occasions, it imposed extra burdens on the state through ad hoc commissions and oversight mechanisms.
The judiciary, thus, must maintain its “institutional strength” by revealing execution flaws and checking government compliance. They must entrust specific solutions to legislative bodies, while honouring the idea of federalism and dividing authority among them, and taking into account the government’s constraints in terms of financial and resource-based policy decisions. If the court can find a balance here, the separation of powers will be protected, and democratic governance will be strengthened as a result of this constitutional dialogue between the many divisions of government.
The author is a student of National Law School of India University, Bangalore
Image Credits: SCC Online
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