In this article, Sanjeev Sirohi, a practising advocate discusses how Judges taking over executive power violates the principle of separation of powers.
Let me begin at the very beginning by pointing out that while crossing swords with the judiciary, the government on November 25 questioned judicial activism and criticized the “trend” of courts appointing retired Judges to head Committees and wondered aloud how Judges would feel if other organs stepped in to do their job. The government certainly has a valid point. As for instance, we saw how the Supreme Court stepped in to decide whether it was correct to send back those thousands of Rohingyas refugees who had illegally crossed over to India following the persecution they faced in Myanmar.
If Government feels that they are a potential threat to the national security and must be sent back that should be final. Judiciary must refrain from stepping in an area which exclusively belongs to the executive. We all know how our national security gets compromised as it had been in the past when we allowed crores of Bangladeshis to illegally stay back in India even after their country got independence from Pakistan! Why should India allow Rohingyas to go and settle in Jammu and Kashmir from where Kashmiri Hindus and those Indian Muslims sympathetic to them were forcibly evicted and compelled to live as refugees in their own country! Why is no voice raised for them? Do they don’t have human rights?
Why is it being treated so casually that Rohingyas entering India and being transported not to some other state close to Myanmar so that they can be deported easily when things calm down but to such sensitive places like Jammu and Kashmir which is directly attacked by Pakistan time and again which can never be good for the national security? Why should Supreme Court even think about allowing them to stay there after PIL is filed in their favour? How can human rights of foreigners who have nothing to do with India be bigger than our paramount national interests? How can it be ignored that many Rohingyas had killed about 100 Hindus and burnt their houses before fleeing to India and have links with dreaded terror organizations like Lashkar-e-Taiba? How can Hafiz Saeed’s open call to Rohingyas to kill Indians be ignored while they are in India?
To put things in perspective, while leading the charge was Union Finance Minister Arun Jaitley, who, addressing a session at the National Law Day function said that, “I have often heard an argument that judicial activism is born out of a phenomenon that other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power…by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears were pending, judges are not doing their job. So must somebody step in and now exercise that power? The answer is no…And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost. Once it is lost, there is no limitation on which area it will go into.”
What Arun Jaitley has said must be treated with utmost respect because he is not just any other Minister or Finance Minister who in the past has also handled Law Ministry but he was also one of the most revered senior lawyer of Supreme Court who even represented Central Government on many occasions till a few years back before ultimately plunging himself fully into politics and becoming a Minister! He thinks a lot before speaking anything and is not the sort of person who would say anything just to remain in news! This alone explains why Centre has very rightly handed him the key Finance portfolio and even the Defence portfolio has also been handled by him apart from Law!
Be it noted, the session, titled ‘Judicial Review and Parliamentary Democracy – Balancing the Separation of Powers’, was organized by the Law Commission of India and Niti Aayog. Calling for caution while exercising judicial review, Jaitley said, “While exercising the power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise either legislative or judicial power. Parliament is not trained or really an institution to exercise judicial power. Judiciary is similarly not trained nor does it have that administrative maturity of exercising legislative power. In fact, if judiciary gets into the process of exercising executive or legislative power, directly or implicitly, the very institution of judicial review itself will suffer.” Judiciary must always bear this in mind what Jaitley has said!
It also must be borne in mind that Jaitley went on to talk of the “latest trend” of courts appointing “retired judges” to various committees to discharge executive functions. He said that “Also this…new trend…alright, I don’t exercise the power myself (but) I will appoint my nominee to exercise the executive power, the nominees may be equally unsuitable to exercise the executive power because they have not been trained. Retired judges have been trained to write judgments…not to run sports organisations…Therefore this temptation of taking over executive power and exercising it yourself or through your nominees clearly violates the Lakshman Rekha (of separation of powers).”
The moot question that arises here is: Why when judiciary exercises so much restraint that it has never till date ever ordered the creation of a single bench of high court in any part of India even though it is a judicial function and it understands the implications fully well of creating a bench in far off places due to which people have to face so many unnecessary inconveniences , it has never so ordered and always left it to the government to decide! The people of Uttarakhand from 1947 to 2000 till it became a separate state had to travel thousands of kilometers all the way to Allahabad to attend court hearings as there was no bench there but only one single bench had been created way back on July 1 in 1948 for such a big state like UP and that too in Lucknow which is just about 150 km away from Allahabad but Supreme Court never stepped in to save people from the huge inconvenience of travelling so far to Allahabad! Even now people of West UP about more than 9 crores of about 26 districts are compelled to travel all the way to Allahabad which is about 700-800 km away from all these districts and benches and high courts of 8 states are nearer to West UP as compared to Allahabad still Supreme Court never stepped in!
As if this was no enough, Justice Jaswant Singh Commission headed by former Supreme Court Judge – Justice Jaswant Singh had recommended 3 benches of high courts to be created for West UP and hilly areas (now Uttarakhand) at Agra, Nainital and Dehradun but not a single bench was created even though on its order a bench was created at Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu! Yet Supreme Cout never said a word on it! In 2012, Centre created 2 more high court benches for Karnataka which already had a bench at Hubli for just 4 and 8 districts at Dharwad and Gulbarga but not a single bench for more than double of the districts – 26 of West UP yet Supreme Court never said a word on this! The 230th report of Law Commission had recommended the creation of more high court benches in big states in 2009 but Centre implemented it only in Karnataka which till now remains the only big and sole beneficiary of it yet Supreme Court did not say a word on it!
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Truth be told, the lawyers of West UP have gone several times on strike as for instance for 6 months from July to December 2001, for 3 to 4 months in 2014-15 and have been striking work for more than 36 years every Saturday from May 1981 to December 2017 and is still continuing but judiciary has never stepped in to resolve this vexed issue! It has always chosen to kept aloof! Why has it never intervened for such a long time?
Truly speaking, the people of West UP who are litigants are compelled to travel whole night more than 700-800 km all the way to Allahabad without reservations many times and face many other inconveniences but judiciary never intervened! Why? When it can exercise itself restraint on this count where so many people have to face so many inconveniences which is a talking point everywhere especially in West UP then why can’t it act similarly in other cases also?
Warning that there would be no limits if the “Lakshman Rekha” is crossed, Jaitley said, “You probably (will) have a court saying where security forces are to be deployed is something which I will decide…” He added that if every high court were to decide on where security forces are to be deployed, for instance, “it’s an invitation to anarchy.” The Kolkata High Court had in October stayed the Centre’s move to withdraw Central forces from Darjeeling and Kalimpong districts, where they had been deployed during the recent Gorkhaland protests. This was subsequently lifted by the Supreme Court.
It has to be borne in mind that in his inaugural address, President Ram Nath Kovind who earlier has himself practised in Delhi High Court and Supreme Court too touched upon the need for separation of powers between the judiciary, legislature and executive, saying, “They need to be careful not to cross into each other’s defined spaces or give the opportunity to read transgressions where none is intended. This can occur in many circumstances. For instance, when extraneous comments and obiter dicta come to dominate public debates, crowding out of substantive understanding and deliberation of a well thought out judgment.”
It also cannot be lost upon us that earlier, addressing the inaugural session, CJI Dipak Misra asserted that judiciary was duty bound to stand with citizens if other organs of state encroached on their fundamental rights. He said that, “The fulcrum of governance – let it be legislature, let it be judiciary, let it be executive – is that the citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension there shall be encroachment, the judiciary is obliged to stand by them.”
It is also of immense significance that the CJI sought to allay fears of judicial activism but stressed that it was the job of the courts to interpret government policies. He said that, “There is a perception that there is judicial activism. I must clarify. Protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary which has been conferred on it by the Constitution. Fundamental rights have been expanded from the date the Constitution came into existence. Expansion of fundamental rights is done by the process of interpretation. Nobody intends, nobody has the desire to enter upon policy making areas. We don’t make policies, we interpret policies and that’s our job.” He has a point!
Well said but again I must ask, why Supreme Court has never ordered the creation of more high court benches in big states like UP and Bihar which are notorious for their lawlessness when even Union Cabinet Ministers like former Satyapal Singh have in past demanded the creation of 5 more benches at Meerut, Agra, Jhansi, Gorakhpur and Varanasi and considering the indisputable fact that Allahabad High Court is oldest in India completing its 150 years in 2016 and I the biggest court in whole of Asia yet has least benches in India! All high courts come under the jurisdiction of Supreme Court still why has it never taken any action on this score?
Why UP sends maximum MPs, maximum MLAs and maximum elected representatives and has maximum population more than that of Pakistan still has least benches and why when even Justice Jaswant Commission recommended creation of bench here in Agra was not a bench created here? Why Supreme Court till now has chosen to look the other way? Why has it never shown any activism in this regard not just in UP but for any other state as well? Why can’t it exercise such restraint in other areas also? It is high time and some serious introspection must be done and it must be always remembered that “Even Judges are not infallible”! A good rapport is needed between executive, legislature and judiciary for running the country smoothly and clashes must be avoided by paying heed to what Arun Jaitley has said so elegantly! This is what our nation needs now!
