The Hindu Business Line : <I>Lacunae in scheme of separation </I>

The assertive expositions of the respective roles of the executive and legislative branches, on the one hand, and the judiciary, on the other, at the joint Conference of the Chief Ministers and Chief Justices in New Delhi on April 8 have justifiably stirred up a vigorous nationwide debate.

This is all to the good: It brings clarity to issues of vital importance that contribute to the continuing strength of India's democratic fabric.

In the process, it also serves to educate the public and mould its opinion in favour of adopting the right conventions and practices.

The assumption of dividing lines between the three organs, on which both the Chief Justice of India, Mr K. G. Balakrishnan, and the Prime Minister, Dr Manmohan Singh, based their stand is, however, flawed in the Indian context.

It is not by any means the water-tight separation, as originally envisaged by Locke and Montesquieu and subsequently adapted by the US Constitution, within a framework of checks and balances, so that no single branch is permitted to overstep its limits or abuse its powers.

In India, there is virtually no dividing line between the executive and legislative branches. Whips enforce subservience of the legislators to the will of the government formed by a political party or combination of parties, and all that is needed for it to prevail is its ability to command a majority in the House.

Rarely is a government thwarted in having its Bills or demands passed, or the Opposition successful in having its propositions on weighty matters accepted. None of the devices, such as the Question Hour, Call Attention Notices, Adjournment Motions, Private Members' Bills and the like, really operate as a brake on the course a government, sure of its majority, sets for itself. Thus, the true picture is that the legislature almost merges into the executive, in the way both function in India.

Ugly features

As regards the judiciary, the power under the Constitution to issue writs and interpret and review the constitutionality of the acts of the executive and the legislature, and the innovation of public interest litigation, no doubt enable it to assert its independence in the discharge of its duties. But the performance of the collegium which has the exclusive right to finalise panels for appointment of judges has, as observed by Mr V.R. Krishna Iyer, "often been dilatory, arbitrary, and smeared by favourites."

The judiciary has to get its act together if some of the ugly features creeping in, such as corruption and vulnerability to pressures, are not to erode its independence. Among the factors that could cause damage from within is the selection of known party enthusiasts for judicial appointments.

There is then the acceptance by retired judges of offers of salaried posts in the various offices under the patronage of the executive and, more objectionably, nominations as candidates of political parties for election. The people cannot be blamed if they wonder whether there was any quid pro quo behind those offers.

It has been noticed, for instance, that the findings of the Commissions of Inquiry presided over by former judges have, in a large proportion of instances, been in line with the expectations of the governments appointing them.

If claims to independence by the judiciary are to be credible, it has to be constantly on guard against attempts to undermine its inviolability. It should give convincing evidence of the collective will of the judicial fraternity to make applicable to all levels a stringent code of conduct and take "We, the People" into confidence by way of regular reports on the details of its enforcement with reference to complaints of violations received.

B. S. RAGHAVAN

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