Boundary lines blur amid growing concerns

To "pine for what is not" is a common human failing, as is the nostalgia for "the good old days." Distance, in the temporal dimension, quite clearly adds enchantment to the view. This columnist recently came across several articles lamenting the decline in the manner in which functions are being discharged by constitutional and statutory institutions, particularly the Supreme Court, the Election Commission, the Reserve Bank of India and the Central Information Commission.

The overall sense one gets, out of these articles, is that there is steady deterioration in the images of these institutions and the respect they command. For one thing, change is innate in nature, over time as well as space, sometimes for the better, sometimes otherwise. In any case, good and bad are pejorative adjectives, essentially subjective in nature.

The accepted approach to the study of the impact of time over a person, institution or a process uses 'parameters' and 'indices', which tell us what to observe and how to measure. The acceptable ranges, within which the blood pressure, temperature and pulse of a human being need to stay, is one such example.

Clearly the method can be used to draw inferences about the state of an institution, say, the Supreme Court of India or the Reserve Bank of India or a process, like say, the conduct of an election or the onset of monsoon conditions in a region. Conclusions drawn otherwise would necessarily be suspect. Having said this, let us take an open and honest look at what is being said about institutions, especially those mentioned earlier.

To begin with, the once sharp boundary lines between the three wings of the State, namely the judiciary, the executive and the legislature, have blurred over time. Courts, particularly the apex court, have not been averse to the occasional attempt at what virtually amounts to legislation.

They have frequently taken upon themselves the role of the administration, while giving directions in matters such as environmental pollution or anomalies in the conduct of examinations; deciding who will do what, and by when, rather than giving a direction to that effect to the administrative agency concerned.

The Supreme Court fixing a timeline for the use of CNG in Delhi or shifting the venue of a cricket matches on account of drought conditions were also similar instances. Similarly, the judgements in regard to the rights of transgender persons and the children of live-in parents also had the effect of introducing new legislative measures.

The judgement restricting capital punishment in murder cases to "the rarest of rare cases" was as good as an amendment to the Indian Penal Code. It is a different thing that the system chose to accept those judgments because, after all, they were in the best possible public interest.

Administrators often perform the duties normally meant for the judiciary to discharge, such as when they are posted as executive magistrates or have to deal with statutory matters in government departments enforcing laws such as a State Sales Tax Act or the Consumer Protection Act at the national level.

They do so, acting on behalf of governments in exercise of the powers granted to make rules under statutes. The Members of Parliament Local Area Development Scheme is an example of legislators performing executive functions.

Therefore, the practice of 'trans jurisdictional excursions' has become an accepted norm in the manifestation of our polity. Such testing of the waters by the different wings of the State is no longer regarded as an unwelcome intrusion but as a sign of desirable harmony.

There are, however, occasions when one of the wings exceeds its legitimate remit, and strays into the legitimate realm of the others, attracting adverse response. The Golaknath case would very well have qualified as a candidate for such description, except that the entire system chose to accept it without a murmur.

Instances when Parliament attempted to undo the impact of a judgement of the apex court by bringing in legislation, such as the famous Shah Bano case of 1985, have also caused avoidable friction between the wings of the State. The judiciary versus the executive or legislature is an old battle. The confrontation reached a flashpoint, when the (then) Lok Sabha Speaker Somnath Chatterjee, accused the judiciary of interference in legislative matters.

He was referring to the judicial deliberations over the termination of 11 MPs in the cash-for-vote scam and raised the stakes higher by refusing to entertain summons by the Supreme Court. Other occasions when the friction between Parliament and the Supreme Court surfaced were, when the Central government moved to bring in a law to make reservations for Other Backward Classes in educational institutions, the Office-of-Profit Bill and the time when the government of India brought in legislation to, in effect, suspend for a period of one year, the direction of the Supreme Court to in regard to demolition of unauthorised constructions in Delhi.

Interestingly, while the judiciary and the legislature have the instrument of contempt available to pull up those acting in disobedience of, or disrespect to their authority, the executive has no such recourse. Clearly, constitutionally constituted wings of the State will do well to stay with the bounds allocated to them, duly respecting and recognising the jurisdictions delineated for the others.

The Supreme Court's verdict in the celebrated Kesavananda Bharati case is a landmark judgement in which the "basic structure" of the Constitution was defined for the first time. That judgement followed the famous Golaknath case, in which the chapter pertaining to the fundamental rights of the Constitution of India was placed outside the pale of the powers of Parliament to amend the Constitution.

There have, however, been instances when the judgments of the Supreme Court drew criticism from informed quarters, and not without reason. Critics draw attention particularly to its stand in AK Gopalan's case, as far back as in 1951, when it upheld the validity of the Preventive Detention Act. The court's stand in upholding that fundamental rights could be kept in suspension during a state of emergency in the country also drew a great deal of flak, not entirely without justification.

Suhrith Parthasarathy, advocate, writing in The Hindu, has made some perceptive observations about the attitude of the Supreme Court towards constitutional issues over the years, especially in regard to fundamental rights. He says there are many "shibboleths that need dispelling" about the court, especially the description of it by (the then) Chief Justice M Patanjali Sastry as a "sentinel on the qui vive".

Parthasarathy goes on to tell us that the present situation of suspense of human rights in Jammu and Kashmir goes to show that, in our country, freedom is of dispensable merit. He regrets that the Supreme Court has shown disdain for the writ of habeas corpus merely because "security matters" have been cited.

He recalls that during the days of emergency, the court's status as a check on democratically obtained authority reached a nadir, through its ruling that fundamental rights could be validly negated during a period of emergency. He notes that that judgement was not "an outlier but, in reality, in extreme exposition of the course default frame of mind".

He states further that the court's stand has created, more or less, a "permanent state of emergency" in the country. He however finally concedes that the Supreme Court has, on several locations, intervened to resuscitate some of the most fundamental guarantees embedded in the Constitution.

(The part-II of this article will appear on next Thursday)

(The writer is former Chief Secretary, Government of Andhra Pradesh)