Checks, conflicts and courtrooms: The dance of India’s three wings

The judiciary, for example, can declare as unconstitutional, and strike down, executive actions, that violate fundamental rights as provided in the Constitution of India. Likewise, Parliament and the Legislatures in the states, can also supervise and review the functioning of the executive branch

The structure of India’s polity stands firmly on the tripod platform of the State, namely, the executive, the judiciary and the legislature. And the powers of the three wings are separated more functionally in nature than strictly. They do not function in isolated silos and have boundaries which merge seamlessly one into another. It was originally based on the American model and tweaked to respond to local imperatives in India.

The principle of separation of powers, originally famously articulated by French jurist Montesquieu in his 18th century work ‘The Spirit Of The Laws’ provides for asystem of checks and balances, giving each branch the authority to restrain or check the powers of the others, preventing any one of them from becoming too dominant, thus creating a balance in the distribution of powers.

The judiciary, for example, can declare as unconstitutional, and strike down, executive actions, that violate fundamental rights as provided in the Constitution of India. Likewise, Parliament and the Legislatures in the states, can also supervise and review the functioning of the executive branch. Parliament and the legislatures of the states also have the power to nullify, by legislative action, the impact of judicial pronouncements or verdicts. The arrangement is essentially to prevent abuse of power by any of the branches, while simultaneously safeguarding their autonomy and independence.

The inter se relationship between the three wings of state is somewhat different in the UK, where Parliament is endowed with absolutely supreme power. In fact, Leslie Stephen, the Victorian – era writer and jurist once, in the 19th century, famously posed the question whether it would be in order for Parliament in Britain to pass a law declaring that all blue – eyed babies should be murdered! That sensational statement led to a tradition being established that, while Parliament’s legal authority was unlimited, its actual power needed to be contained by moral and political realities.

In a landmark judgment of the Supreme Court, for instance, Justice Hidayatullah, in the case Ram ManoharLohiya versus the State of Bihar, drew a historic distinction between the concepts of ‘law and order’ and ‘public order’, using a concentric circles concept. According to the judgement ‘law and order’ is the outermost circle, representing all branches of the law, while ‘public order’ is the smaller inner circle, where a disturbance effects the community at large, by creating widespread fear or panic. A breach of the law, such as a single assault against individual falls under the outer circle, and a crime belongs to the inner one, only when it becomes severe enough, to disturb even the tempo of the community such as a riot or arson. That important distinction had far reaching implications, especially in matters involving actions of authorities under laws such as the Preventive Detention Act.

In an equally famous ruling, the Supreme Court, in the case of Mohammed Ahmed Khan v Shah Bano Begum, held that a divorced Muslim woman is entitled to maintenance from her former husband under the extant criminal law. The controversy which was sparked by the ruling, on account of a section of the Muslim community perceiving it as an attack on Islamic personal law, led to the then, central government piloting the Muslim Women (Protection of Rights On Divorce) Act in Parliament, limiting a divorced Muslim woman’s right, to maintenance from her former husband, to a certain period, thereby overriding the Court’s verdict.

In another significant ruling, the Supreme Court issued guidelines to the executive authorities to prevent misuse of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Once again, following widespread protests, Parliament passed an Amendment Act to overturn the Court’s dilution of the law.

In what was probably the most direct, and major confrontation between the executive and the judiciary, Parliament in 2014, passed the National Judicial Appointments Act (the 99th amendment of the Indian Constitution), to replace the previously existing collegium system for appointing judges. The Supreme Court, in its turn, declared that amendment as unconstitutional, and opining that the system created by that Act violated the basic structure of the Constitution by compromising judicial independence.

And, if that judgment was by way of the Supreme Court asserting its supremacy of its law making authority over that of Parliament, Parliament in its turn, in 2012, retrospectively amended the Income Tax Act to overturn the judgment of the Supreme Court in the Vodaphone case, in which the Court had held that the Income Tax department could not tax the Vodaphone company for acquisition of assets in India as the transaction had occurred overseas. That Amendment enabled the central government, thereafter, to impose taxes and transactions.

In, an action that had the effect of changing the course of the history of independent India, the Allahabad High Court in 1975 found Indira Gandhi, the then Prime Minister of India, guilty of electoral malpractices and declared her election to Parliament as void.

And a well-known series of consequences, followed that were to lead to the subsequent declaration of a state of emergency in India by the central government through an ordinance; Later on, the central government piloted the 39th Constitutional Amendment Act, which sought, retroactively to nullify the High Court’s ruling, and place the Prime Minister’s election beyond the pale of judicial scrutiny. The Supreme Court, however, later struck down a portion of that Amendment as unconstitutional, affirming that free and fair elections were part of the basic structure of the Constitution.

One of the most important judgements of the Supreme Court of India was the verdict it delivered, in 1967, in the Golaknath v the State of Punjab case, establishing that Parliament had no authority to amend Part-III of the Indian Constitution dealing, with the fundamental rights of citizens.

In the same judgement, the Court also famously introduced the doctrine of ‘prospective overruling’ thus invalidating not merely the past acts of parliament, but also the ones it was likely to take in the future. That judgement, once and for all, ensured permanent protection, for the rights of citizens of the country, from possible inroads being made intolegitimate rights by shortsighted acts of the executive and legislature.

The burden of this columnist’s song, in short, is that in the ultimate analysis, there is no substitute for common sense, whether it is in administrative action, legislation or courts interpreting the law or using it in a given situation.

(The writer was formerly Chief Secretary, Government of Andhra Pradesh)