Of classic intersections between Judiciary and the Executive

There was a very interesting intersection between the Judiciary and the Executive during my training days in 1969. I was under training in Krishna district as an assistant collector. The Revenue Divisional Officer (RDO) of Machilipatnam revenue division, in his capacity as a first class magistrate, was hearing a case.

Appearing for the petitioner was the local MLA as his advocate. He was pulled up by the magistrate for not heeding the advice of the Court not to press a particular point too much. The MLA was enraged by that incident and raised a point of order when the state Assembly was next in session, and asked the speaker to hold the RDO guilty of committing contempt of the Legislature. Fortunately, the matter was dropped after some counselling by the Chair.

I always compare that incident with what had happened earlier when the local MLA once came to the office of the tahsildar of Chirala, a taluka in Ongole sub division. As the sub collector, Ongole, I was conducting the annual inspection of that office. The legislator sent a chit asking to see me and the tahsildar, an old-timer with a colonial disposition, crumpled that chit contemptuously and threw it away, saying that no visitors would be entertained when the inspection was going on.

I gently rebuked him, saying that this was no way to treat an MLA, and asked for the MLA to be shown in. In fairness to him, the MLA did not press the matter beyond that. Clearly, all these matters depend on one’s upbringing and culture.

Then there is the aspect of functionaries of the Executive performing judicial functions. I remember having done that while I was under training in 1969 as an assistant collector in Krishna district.

Before being posted as sub divisional magistrates, we were required to try criminal cases, third class first, and then second class and acquire the right to hear first class cases.

I not only heard a particular case pertaining to a gold covering works establishment in Machilipatnam accused of misleading its customers, but also sentenced its representative to imprisonment, entirely without jurisdiction! Luckily, the ambience was indulgent in those days and I escaped unscathed.

One more interesting incident I recall from my service days pertains to an interaction between the Judiciary and the Executive, which happened in 1976 when I was collector and district magistrate of Guntur district. In my earlier avatar, as the sub collector of Ongole revenue subdivision in the neighbouring Prakasam district years earlier, I had passed a land acquisition award, which had been disputed in the subordinate judge’s court at Bapatla, a nearby town. The sub judge summoned me to appear in his court to furnish evidence about the matter. The district collector ranks higher than the district judge, under whom the sub judges work. Still, I not only appeared in that court as required, but tendered evidence, without any compunction about rank or status.

The conduct of the Supreme Court in the Special Intensive Revision (SIR) case of West Bengal has shown it moving away from its role as a constitutional court and adopting the role of an administrator.

The democratic way of life, a choice made by our forefathers soon after independence, certainly appears to have come of age and matured into a stable and reliable form of governance. That the three wings of the state, the occasional transgression of jurisdiction notwithstanding, have mastered the art of coexistence is a matter for gratification, if not pride.

There are several accepted measures by which the powers of legislators, including MPs and MLAs, may be exercised by the functionaries of the executive. One method is subordinate legislation, or the rule framing power of governments, whereby governments exercise the authority delegated to them in accordance with the provisions of a given law. The action thus taken is required to be intimated to the legislature concerned, tabling in the legislature the document through which that action was taken. Some laws leave it to the executive to take such action as considered appropriate through notifications or executive orders. It is not unknown for governments to attempt to shift into rule making authority, which rightfully ought to be exercised by the Legislature, called excessive delegation, in order to appreciate the value of the doctrine of separation of powers.

In a democracy, it would be useful to recall the classic, although extremely hypothetical scenario often used in legal and philosophical discussion to illustrate the limits of legislative power or parliamentary sovereignty. It arises from the statement, “all blue-eyed white babies shall be killed”. The statement is used to argue that even if a supreme legal body passes a piece of clearly immoral legislation, society is not likely to accept it. The separation of powers, however, makes sure that instead of appealing to the wisdom of society and its response to such a situation, the body politic has an inbuilt system of safeguards.

The example originates from the Nazis seeking out children with blue eyes and blonde hair in occupied territories during the Second World War, but to ensure that they are raised by German families.

A somewhat amusing incident I recall from my very early days in service is that of a magistrate who, on the request of a group of upstream farmers whose crops needed an urgent wetting, stayed release of waters from a nearby reservoir, on the border between Prakasam and Nellore districts. The reservoir was so full that water was overflowing over its edge. The district administration sent a couple of engineers to the magistrate informally to apprise him of the danger of the reservoir developing a crack and even bursting under the pressure of the water.

What was more, the court and the magistrate’s residence were very much within the area threatened with submersion under the consequent rushing floods. The magistrate saw the logic, and promptly vacated the stay!

(The writer was formerly Chief Secretary, Government of Andhra Pradesh)