SEPARATION OF POWERS AND THE POTENTIAL FOR CONSTITUTIONAL DIALOGUE IN INDIA

Transcription

1 SEPARATION OF POWERS AND THE POTENTIAL FOR CONSTITUTIONAL DIALOGUE IN INDIA Rehan Abeyratne* and Didon Misri** Abstract: Traditional separation of powers theory does not apply neatly to India. The Indian Constitution mandates independent commissions that exert additional checks and balances on the political system; it permits the President to issue ordinances that function like legislation, and it has been interpreted to require judges to have the final word on higher judicial appointments. This article focuses on a creeping and more nebulous challenge to separation of powers: the higher judiciary s expanding writ jurisdiction in fundamental rights cases. Specifically, it examines the evolution of public interest litigation (PIL) in the Supreme Court and High Courts over the past two decades, where judges act in both quasi-executive and quasi-legislative roles. Drawing on theories of constitutional dialogue, this article proposes how the Indian higher judiciary might retrench in its PIL jurisdiction by directing public attention to the most egregious executive failures and leaving the lawmaking to Parliament. Keywords: separation of powers; Constitution of India; public interest litigation; Supreme Court of India; High Courts of India; constitutional dialogue I. Introduction Traditional separation of powers theory does not apply neatly to India. This theory is derived from Montesquieu, who famously argued that legislative, executive and judicial powers should be kept separate. 1 The late eighteenth century Constitutions of the United States and France adopted this framework for their governments, and it has since become a fundamental even essential component of democratic constitutions around the world. 2 While separation of powers applies most clearly to presidential systems of government, it also applies to the Westminster parliamentary system in which the Crown and Parliament have separate authority. 3 * Assistant Professor of Law, Chinese University of Hong Kong. ** 5th Year BA/LLB Student, Jindal Global Law School. Many thanks to Jaclyn Neo and Po Jen Yap for helpful comments. 1 Charles de Montesquieu, in Anne M Cohler, Basia C Miller and Harold S Stone (eds), The Spirit of the Laws (Cambridge: Cambridge University Press, 1989), Book 11, chapter 6, p Richard Albert, The Fusion of Presidentialism and Parliamentarism (2009) 57 American Journal of Comparative Law 531, Ibid., pp [(2018) 5:2 JICL ] JICL 5(2).indb 363

2 364 Journal of International and Comparative Law The Constitution of India 1950 sets out a parliamentary system, which initially resembles Westminster. A bicameral parliament exercises legislative power; the Prime Minister, aided by a Council of Ministers, exercises executive power on behalf of the President of India; and the President serves as the Head of State and retains some residual authority. 4 Judges of the Supreme Court and High Courts should be appointed by the President, on the advice of the Cabinet and senior members of the judiciary. 5 On closer inspection, however, the exercise of governmental power in India does not function like Westminster and, in some respects, does not even conform to the constitutional text. First, the Indian Constitution provides for the establishment of several independent commissions which exert additional checks and balances on the political system. 6 Bruce Ackerman referred to this model as constrained parliamentarism and highlighted the role of the Election Commission, whose mandate is to safeguard the election process from partisan interference. 7 Its Chief Election Commissioner, who is appointed by the (non-partisan) President of India, can only be removed by impeachment and presides over a secretariat comprising more than three hundred officials. 8 Second, the Constitution permits the President and at the state level, governors to promulgate ordinances that increasingly serve as a substitute for legislation. 9 As the President is required to act on the advice of his cabinet, which is led by the Prime Minister, the ordinance power is effectively exercised by a small number of elected, partisan leaders. Shubhankar Dam has shown that this arrangement has become the preferred legislative method, as ordinances operate effectively like legislation and avoid the messiness of parliamentary procedure and debate. 10 The consequences for executive legislative separation are grave. As Dam puts it, ordinances authorise a non-deliberative, non-majoritarian, and private legislative method one that reduces legislation to fiats. 11 Though ordinances are only supposed to be used in exceptional circumstances and have to be re-promulgated on an annual basis, they have been used to advance important legislative ends, including upholding anti-terror laws and establishing national commissions. 12 Third, and perhaps most controversially, the Indian higher judiciary has claimed the power of judicial appointment for itself. The Constitution mandates that the President has the final word on appointments to the Supreme Court and High 4 Constitution of India 1950 arts.52, 53, 74 and Ibid., arts.124(2) and 217(1). 6 Ibid., arts.315 and Bruce Ackerman, The New Separation of Powers (2000) 113 Harvard LR 633, Ibid.; see also Constitution of India 1950 art Constitution of India 1950 arts.123(1) and 213(1). 10 Shubhankar Dam, Presidential Legislation in India (New York: Cambridge University Press, 2014) pp.4 5 (emphasis in original). 11 Ibid. 12 Ibid., pp.4 9, JICL 5(2).indb 364

3 Separation of Powers in India 365 Courts. 13 However, the Supreme Court, over a series of judgments, has concluded that such appointments must ultimately be approved by a collegium consisting of the Chief Justice and a number of senior judges. 14 Parliament tried to wrest this authority away from judges through a recent constitutional amendment and legislation establishing a National Judicial Appointments Commission (NJAC). 15 The NJAC divided the appointing authority between judges, political officials and eminent persons. However, the Supreme Court held that the NJAC was unconstitutional, as judicial independence constituted part of the Constitution s unamendable basic structure, and the primacy of judges in the appointment process was essential to judicial independence. 16 As with the ordinances power, this development undermines the separation of powers in India by removing a significant executive and legislative check on judicial authority. Each of these aspects of separation of powers in India has been discussed in detail within the existing literature. In this article, we focus instead on a creeping and more nebulous challenge to separation of powers: the higher judiciary s expanding writ jurisdiction in fundamental rights cases. Specifically, we are interested in the evolution of public interest litigation (PIL) in both the Supreme Court and High Courts over the past two decades, where judges act in both quasiexecutive and quasi-legislative roles. This trend is especially apparent in cases involving environmental law and socioeconomic rights. The legal basis for PIL and the interventionist judicial approach with which it is associated is art.32 of the Constitution, which empowers the Supreme Court to issue directions or orders or writs that may be appropriate, for the enforcement of any of the [fundamental] rights. 17 Over a series of cases in the 1980s, the Court interpreted the term appropriate broadly to permit the higher judiciary, among other things, to accept writ petitions filed by NGOs and public-spirited citizens alleging violations of fundamental rights on behalf of thousands (in some instances, millions) of victims and to keep cases open for several years without issuing a final judgment. 18 This authority to sustain litigation over long periods termed as continuing mandamus has permitted courts to monitor government compliance by issuing several, often iterative, interim orders that responded to changing circumstances and facts on the ground. In their PIL jurisdiction, the higher judiciary may also appoint special committees, expert commissions and other 13 Constitution of India 1950 arts.124(2) and 217(1). 14 Rehan Abeyratne, Upholding Judicial Supremacy: The NJAC Judgment in Comparative Perspective (2017) 49 George Washington International LR 569, Ibid., pp Ibid., pp ; Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC Constitution of India 1950 art.32. Article 226 of the Constitution similarly empowers every High Court to issue directions, order or writs to enforce fundamental rights. 18 Surya Deva, Public Interest Litigation in India: A Critical Review (2009) 28 CJQ 19, 20 26; SP Sathe, Judicial Activism: The Indian Experience (2001) 6 Washington University Journal of Law and Policy 29, JICL 5(2).indb 365

4 366 Journal of International and Comparative Law independent bodies to perform fact-finding and monitoring in lieu of the courts. 19 As we will show, these ad-hoc mechanisms further complicate the separation of powers framework in India. This article has three main sections. Section II examines the higher judiciary s exercise of quasi-executive power. We look at cases in which the courts not only take note of governance failures and hold them unconstitutional but also issue specific directions to government officials to remedy those failures. In doing so, the judiciary encroaches on executive power by taking on enforcement responsibilities in addition to their traditional interpretive role. Section III analyses cases in which the higher courts act as quasi-legislatures. In these cases, judges identify gaps in the legal regime as opposed to breakdowns in governance or enforcement and fill those gaps by essentially framing legislation themselves in the form of detailed orders. In Section IV, we look at extreme examples of quasiexecutive and quasi-legislative orders and, drawing from the existing literature on constitutional dialogue, 20 propose how the Indian higher judiciary should retrench its PIL jurisdiction. Instead of prescribing specific solutions, courts should focus on directing public attention to the most egregious executive failures and leave lawmaking to Parliament and state legislatures. II. The Higher Judiciary as Quasi-Executive In recent years, the higher judiciary in India has become increasingly interventionist, assuming responsibility for duties traditionally considered to be the prerogative of other branches of government. 21 Upon taking note of certain deficiencies in governance, the courts have not always limited themselves to pointing out the failure of the executive. 22 Instead, they have found ways to intervene more directly. 23 This goes beyond the adjudicatory and interpretive roles that are normally ascribed to the judiciary within the classic separation of powers framework. In this section, we look at cases in which the judiciary has assumed a quasi-executive role in a way that raises separation of powers concerns. Specifically, these cases illustrate the tendency of the judiciary to stray into the executive realm and step into the shoes of administrative bodies. 19 See Sathe, Ibid., pp Peter W Hogg and Allison A Bushell, The Charter Dialogue between Courts and Legislatures (1997) 35 Osgoode Hall LJ 75; Po Jen Yap, Constitutional Dialogue in Common Law Asia (Oxford: Oxford University Press, 2015). 21 Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court (2009) 8 Washington University Global Studies LR 1, Rajeev Dhawan, Judges and Indian Democracy in Francine Frankel et al. (eds), Transforming India: Social and Political Dynamics of Democracy (New Delhi, India: Oxford University Press, 2002) p Lloyd Rudolph and Susanne H Rudolph, Redoing the Constitutional Design: From an Interventionist to a Regulatory State in Atul Kohli (ed), The Success of India s Democracy (Cambridge: Cambridge University Press, 2001) pp JICL 5(2).indb 366

5 384 Journal of International and Comparative Law the unwillingness of certain states to declare a drought, Justice Lokur expressed the following view on central state relations: To compound the problem, the [central government] has introduced the concept of federalism and canvasses the view that a disaster requires primarily financial assistance and any other assistance if it is sought by the State Government Surely, if a State Government maintains an ostrich-like attitude, a disaster requires a far more proactive and nuanced response from the Union of India where does the buck stop? 150 The suggestion that federalism, which is an integral part of the constitutional structure, 151 should be cast aside in the service of other constitutional goals is troubling. Justice Lokur later provided a more qualified analysis on this point, stating that while the central government must maintain a delicate and fine balance between federalism and constitutionality it is ultimately the common person who will suffer if nothing is done to recognise and remedy the drought situation. 152 While the concern for drought-affected citizens is admirable, the Court s desire to problem-solve in this case led it to minimise the importance of structural constitutional principles. Second, the Court, in this case, makes determinations about state capacity that are beyond its ken. For instance, when ordering the impugned states of Bihar, Haryana and Uttar Pradesh to deliver eggs and milk to all children in need, Justice Lokur made clear that financial constraints shall not be an excuse for not complying with this direction. 153 He added, It is a sad commentary that we should have to say this but need to in the interest of the children of our country. 154 Again, the concern for vulnerable communities is laudable, but it may well be the case that these states have budgetary constraints that prevent the immediate delivery of these services. V. Conclusion This article has sought to describe the separation of powers tensions that arise from the higher judiciary s PIL jurisdiction. It distinguished between cases in which courts exercise quasi-executive and quasi-legislative authority and provided detailed examples of both. Normatively, the quasi-executive exercise of judicial 150 Ibid., Sudhir Krishnaswamy, Democracy and Constitutionalism in India (New Delhi, India: Oxford University Press, 2009) (noting that federalism is part of the unamendable core (basic structure) of the Indian Constitution) pp Swaraj Abhiyan v Union of India (n.135), Ibid., Ibid. JICL 5(2).indb 384

6 Separation of Powers in India 385 power is less problematic. Courts are institutionally better suited to information gathering and dissemination, as well as monitoring roles. In the socioeconomic and environmental protection cases on which we focused, the higher judiciary effectively pointed out governance failures and gaps in legislative regimes. It also usefully set timelines and long-term completion goals for both the state and central governments and engaged in a dialogic exchange with government officials through continuing mandamus. Courts went wrong in the quasi-executive context when they ventured beyond their institutional capacity and expertise to formulate specific rules and policies much as they did in the quasi-legislative context. Specific orders on policy matters often failed to appreciate budgetary and regulatory hurdles, and in some cases, introduced additional burdens on the state in the form of ad-hoc commissions and other oversight mechanisms. Overall, the Supreme Court and High Courts in India should remain true to their institutional strengths of publicising implementation failures and monitoring government compliance. They should leave specific solutions to the state and central governments, respect the federalism principles that divide authority among them and recognise their limitations with respect to financial and resource-based policy determinations. If they can achieve this fine balance, separation of powers in India, though unconventional, can remain intact, and democratic governance can be enhanced by careful judicial supervision where the judiciary engages in constitutional dialogue with the other branches of government. JICL 5(2).indb 385