Pillars of democracy
The triumvirate of Indian democracy must adhere to checks and balances in discharging their specified duties; write Vanam Jwala Narasimha Rao & VJM Divakar
The Hindu triumvirate consists of three gods, namely, Brahma, Vishnu and the Maheswer (Shiva). These Gods independently hold three important portfolios and are responsible for the creation, constancy and annihilation of all life as well as the non-living. Vishnu is the protector of the universe, while Shiva's role is to terminate it in order to refabricate. Brahma's job is the creation of the world, all creatures and non-living matter. Vishnu, Brahma and Maheswer are manifestations of one single unique god, the Parabrahma or Virat-Swaroop who is, by all means, omnipotent, omnipresent and omnicompetent.
The trinity of gods responsible for Creation, Constancy and Annihilation are the subservient to an un-known, intelligent and all-pervading phenomenon to reach whom is next to impossible in normal course. He or she charts their destiny or actions and activities which they can't do on their own and are beyond what is designed or scripted for them. Entire creation of the Universe commences with Parabrahma or Virat-Swaroop, stabilizes for a while on his wish and finally subjected to destruction as and when he desires it to be recreated again and again, era after era. However, none of the trinity intervene or interfere in the work of others except the Parabrahma or Virat-Swaroop streamlines the process as and when it affects the system. The concept of checks and balances between trinity has been to accept the other as supreme in their respective arena as well as convince when required.
Drawing a parallel to this trinity arrangement of our sacred Hindu mythology to Indian democracy, the executive, judiciary, legislature which are the trinity that shapes the destiny of our great nation, are in a way equivalent to them conceptually. Our Constitution clearly defined the roles of these three institutions. There are several measures enshrined in the Constitution so that none of the trinity transgresses on the other's territory. These three Institutions are expected to adhere to checks and balances so that none could exceed its laid down limits.
Several eyebrows are raised on the critical observations and comments made by the courts on the public policies and decisions taken by the Government and on the day-to-day governance in the recent past. Specific mention needs to be made with reference to the state government handling of the Coronavirus pandemic, tests, health care, treatment etc. Many doctors, officials, staff serving on the ground expressed the view that the Court, if need be, can constitute an experts committee (Amicus curiae) and ask the committee to inquire and submit its report on the matter, instead of summoning the senior officials to the court. Summons of such kind force the officials to leave their basic and committed duties and run around the courts for hearings time and again. This has been hampering the actual job-chart that they are supposed to deliver, which the courts also expect them to do.
Our Constitution and a plethora of Supreme Court verdicts during all these decades have time and again defined the roles of the judiciary, executive and the legislature. In a number of cases, the Apex Court held that the judiciary should limit itself to its basic role of governing the Constitution and ensure that the decisions, policies taken by the governments are not violative of the Constitution. If the courts start interfering in the day-to-day administration, the administration will collapse.
Several legal luminaries say that faith is reposed on the judiciary only when the judiciary recognises its limits. Courts may interfere in public administration in good faith, but, If the courts step outside the area of their institutional competence, the Government may bounce back by way of legislative action to circumvent the jurisdiction of the courts in any matter that comes in the way of good governance. Such a step would not only undermine the rule of law but also highly undesirable for the framework and spirit of the Constitution. But what and where is the remedy?
Striking down a Government Order (GO) or policy of Government just because there is a variation or contradiction or procedural mistake is avoidable. Life is sometimes a contradiction and even consistency is not always a virtue.
The function of the judiciary is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that executive authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Interference with day-to-day policy, governance and administration much to the discomfort of the executive may be avoided.
The government in power which is the real executive occupies the position due to people's mandate for a period of five years and it is bound by duty and responsibility to fulfil the needs of the people. If they fail, they will lose the seat.
It is not the domain of the Court to embark upon the unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The Constitution entrusted explicitly this responsibility to these two bodies and if they violate, they would be taught a lesson in the electoral courts.
It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution.
In a democracy, it is the prerogative of each elected government to follow its own policy. Often a change in Government may result in the shift in focus or change in policies. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. In other words, it is not for the courts to consider the relative merits of different policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is the legislature and not the courts.
There are several judgments, verdicts by the courts on the limitation of judicial scrutiny. In such a case, will it be wrong to assume that the judiciary will act judiciously while rendering justice? It is in this context and background it is apt to compare them to the roles played by Brahma, Vishnu and Maheshwar!
Views expressed are personal