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“The despotism of an oligarchy’- working like gravity by night and by day gaining a little today and a little tomorrow and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped”.

———Thomas JeffersonThe recently made observation by the Chief Justice of India that the differences between the two wings of the government(judiciary and Executive) is, in a way,’ desirable’ seems to flicker in mock hyper reality’ when viewed in the light of repetitive confrontation between the two which is rapidly assuming grave dimensions. Unlike past, political parties –cutting across their ideological lines-have closed ranks behind an assertive President of the Lok- Sabha that has made the ‘inter- institutional’ conflict more alarming.

The much ‘esteemed’ judicial activism, seen as the ultimate savior of public interest, has started to unfold its long term adverse implications in the larger context of governmental functioning. Be it the case of land ceiling, cash for question scam, office of profit bill, exercise of clemency or the most recent issue of OBC reservation in higher educational institutions, both the institutions have failed ,on one or other occasions, to show the spirit of mutual accommodation and operational synergy in the greater interest of smooth governance.

It would be grossly unfair not to accept the fact that activism of judiciary has not only served the larger public interest but has also strengthened the cause of democracy by issuing judicial commands from time to time to enforce greater transparency and accountability in the administration.

But, the Judiciary very often fails to appreciate that apparent failure of Executive ‘inter alia’stems from its being the most ‘visible’ face of the government the actions of which are subjected to the closest public scrutiny, ‘contra posed’ to other two wings of the government. Further, unlike judiciary and legislature, the Executive responsibility and functions has no definite constitutional ‘contours’. In other words, in the constitutional ‘scheme’ of things, Executive functions include anything and everything that remains after making specific allocations to the other two wings of the government which renders its job more challenging.

On the other hand, the Executive needs to accept this harsh reality that judicial activism is rather a direct outcome of the formers unarguable ‘inactivism’.The indisputable domination of executive ‘ukase’ by judicial ‘commands’ and its disputable foray into the arena of policy-making lies to a great extent in the overwhelming support of the people at large who have reposed the highest level of confidence in Judiciary to protect and promote their rights. No doubt, we have yet to come across a breed of judges having developed and perfected the art of human trafficking.

But, individual acts of omission and commission can not be a ‘credible’ ground to justify any alteration in the constitutionally ‘ordained’ balance of power among the three wings of government

Our Constitution is one of the most ‘balanced’ one which does not leave any scope for any of the wings of the government to ‘over reach’ its jurisdiction to assume dictatorial powers. The distribution of powers, privileges, rights and duties among the three wings of the government has been made ‘unequivocally’ clear in our Constitution as per which Parliament should enact laws, Executive has to enforce it and the Judiciary reserves the final powers of its(laws) interpretation.

Nevertheless, the efficient and effective functioning of the whole governmental machinery presupposes (quite genuinely) the ‘mutuality’ of jurisdictional accommodation because the three wings can not function under ‘water-tight’ compartments. It is here that the crux of the whole problem originates when one of the institutions starts feeling the heat of gradual transformation (implicit or explicit) of innocuous accommodation into ‘disturbing’ domination. And the whole process of this jurisdictional ‘trespass’ (if it so happens) is accompanied by such a diverse number of interpretation and counter-interpretation (even legal luminaries get divided very often) that it defies a clear cut Judgment.

Thus the apparently simpler ‘statutes’ develop an ensemble of technical as well as substantive complexities when put to application. As for instance, if the Art. 142(2) of the Constitution confers all and every power on the Judiciary to ensure attendance before it, call for any document and punish contempt- Art.74(1)and (2 ) explicitly empowers the Executive to restrain the courts from enquiring into the merit of the its advice being tendered to the President. In conformity to the principle of Balance of power the Legislature, on the other hand, enjoys the supreme law-making power by which not only it decides the powers, privileges and immunities of its members (Art.105) but can also regulate the jurisdiction of the other two wings in many ways. The conflicting situation arises when a judicial verdict while being in consonance with existing laws appear to be against the wishes of the legislature and the latter decides to overpower the hurdle by way of bringing the facilitative legislation thus bypassing the former in effect(OBC reservation) or vice versa.

No doubt, given the nature of complexities involved, we need a much enlightened approach towards the whole issue keeping uppermost in mind the long cherished values of democracy and good governance. What is required is understanding and interpreting the substantive provisions of the Constitution in its truest spirit which alone can preclude all the confusion surrounding ‘enaction’ and ‘enforcement’ of laws. Though the intermittent ‘noise and chaos’ (someone called the very beauty of any democracy) may not be undesirable yet the more serious and regular trading of ‘charges’ can be avoided.

The responsibility lies equally with all the three wings of the government but we would welcome ‘Judicial initiative’ here because it is the Judiciary only which has been ‘conferred’ with the final powers (Constitution) to decide—Has there been any trespass on other’s territories? Further, the other reason can be seen in the age-old saying –

“all of us are under law and the law is what the judges say it is”.

Sajjan Pratap Singh Director, iiiasa