The writer has enjoyed the indulgence of the readers by non-appearance of this column for the last two weeks. The request of the writer is to condone the lapses as he was on a serious sabbatical.
The balance of power amongst the three wings of the State, the legislature, the executive and the judiciary, is an essential requirement of good democratic governance. Human failings would very often prompt members of each category to assert themselves in a distorted manner. But certain things have to be realised. Malfunctioning of legislature and judiciary results in lesser accountability of the executive. This will also provide an incentive to the executive to aggrandise more and more power.
Non-functioning or irrelevantly functioning of the legislative forum leads to abandonment or default of the duties of its members. The legislature is where laws are made and subordinate legislation is controlled. No doubt, the executives draft legislative proposals, but an enlightened House would always welcome changes for the better. There lies relevance of a debate, sharing of views, and to facilitate the same there are legislative committees.
let us look at the situation in Odisha. The legislature has been sporadically functioning and is made non-functional and non-efficacious by actions or inactions of both Opposition and ruling party members. This results in very important legislations being guillotined without the persons, who represent the people of Odisha, and not having had the opportunity even to look at the legislation. legislation is one of the instruments of social engineering. It is an essential part of the governance process in a democracy. The reflection of different viewpoints emanating from the grassroots is filtered into policy formulation, which in turn, is reflected in the legislation. let’s take an example: Executive prepares a set of legislations; there is no debate in the House or any other competent forum of evaluation and, finally, the legislations are guillotined and turned into formal statutes. The infirmities and shortcomings in the instant case remain unnoticed and, even if analysed outside the House, no legislator takes interest in this regard in any effective manner. It is, therefore, a betrayal of the people not to debate out the issues that affect the people at large. There has to be sensitivity in this regard. This trend also over-empowers the executive. This, in effect, does not exercise its own powers and this by itself is a dangerous potent. The citizen is entitled to comment that legislative functioning has become almost rubberstamping. The citizen is at the receiving end.
There is no option left to the citizens or group of citizens to knock at the doors of the judiciary for adequate redressal. Courts are empowered to strike down unconstitutional legislations violating fundamental rights. Once that happens, the executive immediately has the thinking that its powers are being usurped. There are repeated criticisms of the judiciary having entrenched into the domain of the legislature or the executive. This grievance ignores the fact that the judiciary is merely exercising the power of public accountability and it is invested with certain higher powers, which other organs of the State do not enjoy. The Constitution reposes more than ordinary trust and power of judicial review is being constructively expanded. Very wrongly, some such judicial actions are styled as “judicial activism”. This treatment is inherently dichotomous. The answer to this is “certainly not”. The judicial actions being commented upon are “judicial creativity” through a multidisciplinary exercise of interpretation-cum-implication of different nature.
The situation puts a heavy responsibility on the judiciary. The body politic is gradually proceeding towards a greater responsibility and duty on the part of the judiciary. In this sphere of innovative departure on the path, modalities and objective have to be revisited and re-evaluated. Obviously, we cannot expect judges to go and do the job of the executive. This may be quite onerous, but the societal needs command it. This aspect will also be undesirable and subversion of the separation of power. The judiciary, therefore, under compulsion of circumstances, will continue to function in its own conscience but would now have to devise ingenuous methods and alteration in the archaic system of decision-making.
The problem is how to set any form of reforms in motion as each wing through its authority will dig their heel as deep as they can. This wisdom has to come to our rescue and there has to be a mutual respect among the three organs.
The future that is being burnt down belongs to today’s youth power. It is they who will stand denied of their inter-generation equitable right. But they seem not concerned at all. I think an inbuilt refresher course on the new dimensions of public administration has to be percolated down to formulate proposals for structural changes and consequential requirement of a regulatory regime. We should not be driven to a corner where a particular type of card is necessary for identity as a citizen.
Such issues are very many and their solutions are to be evolved at the grassroots level. For this, a barefoot movement has to start. The different similar organisations and rest of the civil society have to unite under one banner for ensuring restitution of our Constitutional right of governance truly in terms of the spirit of rule of law. If not, we would have failed ourselves and our future generation and would have destroyed the evolving new concept of intergeneration equity, at least in the case of nonrenewal resources.
There has been one school of thought that we depend on the judiciary too much, but this comment can be totally demolished provided in the new form of litigation a new orientation is projecting. Our judiciary is creative, innovative, purposeful and not hidebound. This requires a departure from adversarial litigational attitude to a purposive justice-oriented inquisitorial one. This would not be the first and last form of reform. Many peripheral changes would require to be carried out. But this may fall into changing the era of imposed arbitration. But the usual trend of the retired judge alone, being only competent arbitrator, should not be the gospel truth.
Alongside, we have a judiciary with ever increasing socio-political power. It has a history of its own. Our experiences during the Emergency regarding the role of High Courts and the Supreme Court are not to be forgotten. It finally led to Constitutional amendment that is more important to us than the professed apologies of the concerned judges.
One issue is coming to the front. Is there a remedy under the Constitution to save the Republic of India from the basic structureIJ We have to guard against any attack on the republican character of the democratic edifice enshrined in the basic structure of the Constitution. There is no reason for the citizens to take precaution not to inflict an injury on the intergeneration equity. Once it accepts that there would be no intergeneration conflict of any nature then there is no likelihood of confusion and conflict. This, surely, concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha.
jayantdas@hotmail.com)