By Tarunkumar G. Singhal, Raman Jokhakar; Chartered Accountants
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A sharp speech in Parliament by finance minister Arun Jaitley has once again foregrounded simmering tension between different organs of the state. According to Jaitley the judiciary was overreaching into legislative and executive domains, a sentiment which other parliamentarians – not necessarily from BJP – share. This bodes ill as the Constitution provides for a separation of powers between legislature, executive and judiciary. Democracy functions smoothly when each branch stays within established boundaries. The legislature’s anxiety is not unfounded as there have been instances when judicial verdicts have pushed the boundaries. It is imperative for the judiciary to be restrained.
In India, it is the Constitution which is supreme. It empowers legislature to make laws and judiciary to interpret them in the event of disputes and litigation. The Constitution’s architects envisaged the judiciary as a counter-majoritarian institution which would uphold it in case of deviations. The judiciary has not been passive in this role. For example, in order to enhance access it has been willing to consider even a postcard mailed to it as material enough to act. But apart from ruling on constitutional issues, judicial restraint is essential if harmonious balance between different branches of government is to be preserved.
The equilibrium can be upset when the broad-based nature of a verdict encroaches on the domain of the legislature or executive. Verdicts such as the recent one in Delhi’s air pollution case have asked for an increase in specific environmental tax. Another instance was when Supreme Court recently set a short deadline for government to create a drought mitigation fund. There are two immediate dangers of overstepping. It upsets the balance of power and triggers friction between different branches of government.
It needs to be pointed out, however, that other branches of government have not been blameless in this regard. The executive’s failures and lack of accountability have often led people to approach the judiciary to get existing laws implemented. In a similar manner, legislature has often been unresponsive to changes in society. To illustrate, the first step to provide formal protection against sexual harassment at the workplace was the outcome of judiciary stepping into a vacuum left by legislature.
If democracy is to function smoothly, other branches of government too must raise their game while the judiciary exhibits restraint, keeping in mind that its job is to interpret laws not make them.
(Source: Editorial in The Times of India dated 18.05.2016)
