A harmonious coordination between legislature, executive and judiciary is one of the crucial aspects that concern governance. And incidentally, this has been the theme of a two-day 80th All India Presiding Officers’ Conference in Gujarat and, most significantly, it was addressed by the President, the Vice-President and the Prime Minister on such a crucial issue. Speaking on the concluding day, which also happened to be the 71st Constitution Day, Prime Minister Narendra Modi underlined the significance of “Maryada” or the limitations of each branch of the government or the separation of powers. He also spoke about the checks and balances inherent in the Constitutional scheme of governance, including the institutional course-correction mechanism in case of any eventuality of deviation from the Constitutionally-sanctioned format.
According to the Prime Minister, there is a connection between the endeavour to harmonise the functioning of the three branches of the government and the “people’s trust”. The Prime Minister seemed to be insisting on “Jan Bhagidari” (people’s participation) in governance through connecting them with Constitution, which they gave to themselves and making constitutional ethos and language more popular with the younger generation. On the other hand, President Ram Nath Kovind emphasised more on the role of the Opposition and the requirement for deliberation with the ruling party. However, Vice-President Venkaiah Naidu was more attached to the theme and spoke of the “excesses” of the executive and legislature, according to him, the “violation of rights and liberties of citizens by the executive at times is too visible. At times, the legislature too has crossed the line …”, Besides, concerns were also expressed by the Vice-President about the increasing disturbances of balance between the various institutions under the Constitution.
The Vice-President was quite sceptical and critical about the judicial “overreach” and shrinking ground for the “jurisdictional sanctity enshrined in the Constitution” and also tended to beckon towards judicial interventions on matters ranging from fireworks on Diwali to denying the executive to play a role in judicial appointments in the higher judiciary. Which, according to him, has led to “avoidable blurring of contours demarcated by the Constitution”.
However, the concerns with some other quarters of this democracy have been different from the concerns expressed by the Vice-President. Some of the views have been contrary to the government, like, ‘it is actually the political executive which has been using its brute majority to get its way through many controversial issues’ and that, ‘the judiciary is not keeping up to the need of the hour to keep the balance between the three branches of the government and the monopolies in governance, basing upon the whims of the government’. To put it in another way, there is no denying that there are instances of judicial overreach or judicial activism but the discontent remains in the judiciary’s unwillingness to be the conscience keeper of the executive and to remind it the limits of its power.
There is no denying that, there is a need to introspect about the disturbed constitutional balance but not essentially the way the Vice-President wanted it to be. It is important that the executive must self-aware itself about the fact that how much unconstitutional it is to use majority or majoritarian principle to suppress reasoned voices of the opposition and that it does more disservice than benefit to the nation.
It is also important that the executive should understand that the separation of power is important to be preserved as ‘democracy’ is such a ‘magic wand’ that, it can any moment lead to changing of sides, those constituting treasury benches may find themselves in opposition in some point of time and vice-versa. And therefore, preserving separation of power shall benefit all, respecting dissent shall benefit and shall secure greater national interest and collective good.
The Doctrine of Separation of Powers was propounded by Montesquieu in ‘De l’espirit des lois’ although it was first proposed by John Locke to separate the legislative power into discontinuous legislative power, continuous legislative power and federative power. And in 1787, the founding fathers of the United States of America took this principle into the frames of their constitution. Since Montesquieu believed in his theory that the same person should not form part of more than one of the three branches of the government.
And the Supreme Court of India has in cases like IR Coelho v. State of Tamil Nadu and Indira Gandhi v. Raj Narain has observed that the separation of powers was limited in the Indian context unlike the United States. Irrespective of this, it is important to protect and preserve the kind of separation of power inherently designed within the Constitutional framework.
The separation of powers doctrine contemplates a system where powers are delegated by the Constitution to the three branches of the government and, thereby, exactly drawing the contours of the jurisdiction of each such branch along with reasonable grounds of trespass into each other’s domain for ease of business and in greater national interest.
(The writer is a lawyer and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com.)
