Building a 'Lakshman rekha' brick by brick: A perverse lesson from Uttarakhand

That there has been a kind of a turf war between the current Executive and the Judiciary is no secret but the Executive seems to have been feeling rather strongly singed by the recent developments, particularly in Uttarakhand. The Legislature also seemed to have been drawn into this ruckus which appears to be one-sided, at least in the public domain since the Judiciary usually speaks only through its judgments.

The Uttarakhand episode raised many questions. One such was asked in an editorial : “Was the handholding (of the Uttarakhand Assembly by the Supreme Court) necessary?” The editorial itself provided a kind of a prudent and even-handed answer. It cautioned both parties in saying “But even as the Central government reflects on the damage it has done to its own reputation, the court must also ask itself whether it could have been more mindful of its own boundaries in Uttarakhand.”

Possibly coincidentally, the very next day almost the entire media was splashed by a headline which can justifiably be called sensational. It said “Judiciary is destroying legislature brick by brick: Arun Jaitley.” Elaborating his stand, the Finance Minister is reported to have said, inter alia, “With the manner in which encroachment of legislative and executive authority by India’s judiciary is taking place…”

Just five days later, on 16 May, came another news item quoting the Finance Minister as saying that “Judiciary must draw its own ‘Lakshman rekha’. This is what the news report said, “Judicial review is legitimate domain of judiciary but then the Lakshman rekha has to be drawn by all the institutions themselves. Lakshman rekha is very vital,” the finance minister said, asserting that “the executive decisions are to be taken by the executive and not the judiciary.”

Statement such as these, made by arguably the second most important minister in the cabinet after the Prime Minister, who is also considered to be a legal and constitutional luminary, and on the floor of the Parliament, have to be taken very seriously.

The issue whether the judiciary is encroaching on the authority of the legislature and the executive, is inseparable from the doctrines of “separation of powers” and “checks and balances”, enunciated by the French political philosopher, Montesquieu. ‘Separation of powers’ obviously means that the three ‘pillars’ of the ‘State’, the Legislature, the Executive, and the Judiciary, operate in separate domains and usually do not, and should not, interfere in one another’s domain. This exercise of powers, however, is not totally unfettered. It is accompanied by the system of ‘checks and balances’ under which each ‘pillar’ acts as a check on the exercise of powers by the other two pillars, and is expected, and required, to provide a balance if any of the other two do not, or are not able to, exercise their powers in accordance with the supreme law of the land, the Constitution.

The number of times judiciary has refrained from pronouncing on legislative issues is far more than the number that they have done so. And whenever they have done so, has been by following the principle of “filling in the gap in legislation, till such time as the legislature acts on it”. As the Supreme Court said in the Vineet Narain case, “In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.” More specifically, the judiciary does so under three conditions: (a) there is a ‘gap in legislation’, (b) the legislature has not had the time or inclination to fill it, and (c) most importantly, public interest is suffering. When these three conditions are satisfied, it is said that “the judiciary has the right, nay, a duty, to fill the gap in legislation till the legislature decides to act on it.”

Based on personal experience of the last 15 years, some such instances are worth mentioning. When a High Court ruled that candidates contesting elections to Parliament and State Assemblies must disclose criminal cases pending against them, their financial assets and liabilities, and their educational qualifications, the government of the day appealed to the Supreme Court(SC) against that decision. When the SC upheld that decision, the government issued an Ordinance to amend the Representation of the People Act to prevent the disclosure. The Ordinance was converted in an Act by the Parliament unanimously. It was then left to the SC to declare that amendment unconstitutional and null and void. That is how the affidavits which are filed along with nomination papers came into being in 2003.

Innovatively, one of the responses of politicians was to leave uncomfortable columns in the affidavits blank. It took another decision by the SC to make candidates fill all columns of the affidavit. Interestingly, it is these same affidavits that are giving anxious moments to some politicians about their educational qualifications. A recent example is the Foreign Contributions Regulation Act (FCRA). When two of the leading political parties are found guilty of violating the FCRA by a High Court, attempts are made to amend the FCRA to let them off the hook. When those attempts do not succeed, the amendment is done by including it in the Finance Bill.

It seems the political establishment, in the form of political parties, are not comfortable following the laws that they themselves have passed in the Parliament, often unanimously. And when they are required to follow the law, by the judiciary, at the request of concerned citisens, their standard response seems to be to amend the law that they find inconvenient.

The Right to Information Act (RTI) is yet another example. When the highest statutory authority in the country to implement the RTI Act, the Central Information Commission (CIC), says that six national political parties satisfy the requirements given in the Act under the definition of a public authority, and therefore these six parties are public authorities under the RTI Act, what do these six main political parties do? They openly defy the CIC’s decision! When the matter goes to the SC, the Union of India is the first to respond to say that RTI should not apply to political parties.

With the RTI Act having been passed by the Parliament unanimously, one has to wonder who is destroying the authority of the legislature!

And in the case of Uttarakhand, did the judiciary take suo motu cognisance of the matter or did someone approach the judiciary?

The lesson that seems to have been taken from the Uttarakhand episode it to rein in the judiciary by creating public opinion to the effect that the judiciary is over-stepping its limits and is preventing the executive from doing its work. That this lesson is perverse should be clear from the above examples which amply illustrate that the judiciary steps in to fill the gap in legislation when the executive and the legislature either ignore or attempt to harm public interest while trying to serve the narrow and partisan interests of the political class.

Therefore, what is failing the country is not the judiciary but the partisan politics of the entire political establishment. It is the political parties who have rendered the legislatures irrelevant by constantly disrupting it. This denigration of Parliament has been become more obvious since 2013.

The lesson that needs to be learnt from Uttarakhand is for political parties to mend their ways of working. Unless that happens, not only the legislature but the entire architecture of democracy will be destroyed. And in that case, ‘who is to blame’ will become irrelevant.

Instead of lecturing the judiciary to draw a Lakshman Rekha, it is for the political class to get out of the rekha of political partisanship and start working in the national interest. That is the only way the edifice of an effectively functioning democracy can be built brick by brick.

The author is former professor, Dean, and Director In-charge of Indian Institute of Management, Ahmedabad. Views are personal.