If govts do the job, there won’t be judicial overreach

Hardly a month or two elapses before we hear protests from our politicians alleging that the judiciary is overreaching itself by poaching on the domain reserved for the executive and Legislature under our constitutional scheme. These protests are most pronounced in high-profile cases like those relating to former CVC Thomas, black money stashed abroad and the 2G scam.

Even our knowledgeable, mild-mannered and almost invisible prime minister, Manmohan Singh, felt provoked enough to say recently that the Supreme Court was exceeding its bounds in passing a certain order. What did the court direct? It said that thousands of tonnes of food grains rotting in open places for want of proper storage should be distributed free amongst the poor.

Did the apex court exceed its bounds?
Adherents of a classical view of the famed theory of division of powers, normally identified with the French philosopher Montesquieu, would certainly believe so. The politics of production, storage, distribution and pricing of food grains is complicated and definitely belongs to the executive and legislative domains. But in a starving nation like India, is it realistic to expect the courts to keep out of such developments?

By some estimates, 5,000 new-borns die every day for want of food and lakhs of children countrywide lose their eyesight every year for lack of nutrition. It may be accurate to say that most Indians will applaud the Supreme Court for its ‘overreach’.

To understand what this debate is all about, it is necessary to know how power is distributed in our democratic society. Ultimate power belongs to the people who have given themselves a Constitution. The Constitution provides how the three arms of the State will function.

Thus, the two houses of Parliament and the state assemblies (legislature) promulgate laws, politicians and bureaucrats at the state and Centre (executive) implement these laws by formulating suitable policies and implementing them and the Supreme Court and high courts (superior judiciary), keep a watchful eye on the functioning of the legislature and executive.

In theory, the three arms of State have to function within the framework of the powers given to each of them by the Constitution and to respect those of the other two arms. In practice, however, events hardly occur that way in a complex society like India. The raging debate over how to control the creation in and flight of unaccounted money from our economy is a case in point. The judiciary has come into the picture only because there seems to have been blissful inaction on the part of both the executive and legislature for the last 60-odd years. Ideally, all the three arms of state must perform in competition and cooperation simultaneously to serve public interest.

Some constitutions, like that of the US, are based on the principle of a strict separation of powers. On the other hand, constitutions of countries like the UK, Canada and Australia have informal separation of powers. Thus, under the US presidential system, the president is directly elected by the people and has a fixed term of office.

However, in parliamentary democracy prevalent in the UK, Canada and Australia, the prime minister is elected by the majority party in the legislature and is answerable to it. Our Supreme Court has held that our Constitution substantially follows the parliamentary form of government.

No amount of protests from politicians and bureaucrats will reduce the awesome position enjoyed by the judiciary due to the trust reposed in it by the people. The common man's experience is that most politicians and bureaucrats will do anything for personal gain. Despite the shortcomings of the judiciary the common man still prefers the judge to the politician or bureaucrat.

If our political class really wants to check overreach by our superior judiciary, governance must improve dramatically right from the panchayat level to the taluka, district, division, state and Centre. The superior judiciary is then bound to get the message.

There is a story, perhaps apocryphal, told about post-World War II talks in which US President Franklin Roosevelt, Russian leader Joseph Stalin and British Prime Minister Winston Churchill participated. The US President wanted the Pope also to be present. “How many garrisons does the Pope have?” Stalin is supposed to have retorted.

Our judiciary knows it has no garrisons. But if politicians and bureaucrats create a vacuum the judiciary is bound to fill it.