Governance out of sync
The famed three pillars of governance are stacked as columns in tension and spatial contest.
The scales of governance have become unhinged and appear to be leaning heavily towards the Judiciary, at least in the eyes of the Executive and the Legislature. And to add insult to injury, this is not because of any embedded Constitutional design of our forefathers, but has been the incremental consequence of what is ubiquitously called 'judicial activism'. The political executive has been unanimous in their acquired conviction that deep inroads have been made into their imagined domain and with the full assistance of the permanent executive, atmospherics are being generated that this extended reach of the judiciary needs to be cut to size.
To be sure, governance rests on the three pillars of Executive, Legislature, and the Judiciary fulfilling their respective mandates under the Constitution, yet it often happens that one set of actors overplay their roles, thus endangering the delicate balance within which the three wings function best. Restraint has always been a virtue in the performance of Constitutional duties, yet it is not unusual, in our times, to see personas overtake the competing egos to establish a 'new normal' or engrave their place in history. But the institution will suffer, in such a contest.
Walter Bagehot, who wrote extensively on the English Constitution, as far back as 1867, asserted that, 'a Constitution needed two parts, one to excite and preserve the reverence of the population and the other to employ that homage in the work of the government. The first he called 'dignified' and the second, 'efficient'. The monarch was the prime example of dignity and the cabinet of efficiency. The distinction is relevant even today, particularly in parliamentary democracies and should be respected as the prime elements of the sanctity of the oaths of governance. This is the only way for the Executive and the Judiciary and the Legislature to harmonise.
Sure, we are all witness to the debasement of public discourse with the contenders for the right to govern reaching for the depths of gutter exchange, but this is a sure road to anarchy, which is closer than we like to think. We have got as far as chaos and the next stop is only anarchy, let no one be in any doubt. To begin with, our journey since Independence was quite staid and despite the testing times, on occasions, the inter-institutional relationships were cordial with the Executive having the necessary leeway to arrange its mandate autonomously. The first serious assault on the dignity and sanctity of institutional spaces came in 1975 with the declaration of Emergency by the government of that day. The Constitution got mauled, the Judiciary was intimidated through supersessions and the Executive got the run of the entire play and it did not respect any law except to perform as per command. The Legislature abdicated too and was prepared to even amend the Constitution to suit the convenience of a personality instead of being attuned to the aspirations of the people. And it did so without demur.
The recovery and reconciliation from this assault had necessarily acquired a tinge of vengeance with mutual suspicion amongst the three pillars of governance. The evident propensity of the Executive to pander to political masters induced the overt effort of the Judiciary to insulate itself from any further Executive manipulation and over a series of pronouncements of the highest Court, all appointment matters were appropriated within its own exclusive jurisdiction. The last effort of the legislature to move the appointments in higher Judiciary to a judicial commission has also been thwarted and the famed three pillars of governance are again stacked as columns in tension and spatial contest.
It is true to say that the Executive has been guilty of many failures of governance. For one, the country is, in any event, a hugely complex nation to govern and it has to be said that against many hostile winds and forces, the Executive has preserved the integrity of the country, which is indeed a no mean achievement by any standards. At the same time, public policy has been by and large inclusive in content and approach. However, it is in the process of implementation that the Executive has been found wanting, and very woefully wanting, on account of various reasons. Implementation failures have been compounded by demand overtaking the supply in every needed service the citizen was bound to receive as per law. And the crowning deficit of governance has been the complete absence of accountability and responsiveness to the people thus driving them to judicial platforms for redressal of grievances and enforcement of rights.
It really started in 1979, when a petition was filed on the condition of the prisoners detained in Bihar jails, whose cases were pending in the Court. This was not filed by a single prisoner but by various prisoners in Bihar jail. It was in the name of a prisoner, Hussainara Khatoon and came to be known through that name. The Supreme Court held that the prisoners were entitled to legal aid and fast trials. The non-performance of the Executive has been highlighted through many public interest petitions and the Courts had to compel the executive agencies to provide answers. In the ensuing consequence, domain distinctions have blurred and sometimes even disappeared. In a sense, it is open season where every Executive action and inaction is under court scrutiny. The resulting prescriptions from the Bench could not provide better answers nor could their interventions make the executive competent in handling their domain any more efficiently. The trademark lethargy of bureaucracies combined with lack of inspirational leadership have failed to ignite the changes that are so obviously needed to get a performing executive. The judicial 'overreach' thus becomes a much-needed alibi for the executive as well as a counter-offensive to limit and restrict the expansive tendency to the minimum. Alongside, is the obvious inability of the judiciary to conceive or manage public policy as they have no decision support systems of any calibre for delivery of such frameworks. And over the years, their own systems needed re-engineering, which has impacted image and credibility, in particular in so far as the subordinate judiciary is concerned. Nor is it humanly possible for every person to seek judicial help, as it is an expensive process and can take a long time to coming to one's rescue. At the end of the day, in every circumstance, the citizen is left short-changed and bereft of his due.
A way forward has to be found. The executive arm has to fulfill its mandated obligations in governance. It is the prime doer and the only one that can bring prosperity to the country. Yes, it can be helped by the other co-pillars of governance, but the leadership role, truly, belongs to the political and the permanent Executive. Therefore, it necessarily, has to be fair and impartial in its performance. A biased commitment, if any, has to be towards the rule of law rather than to the rule of personalities. The latter will and must invite judicial reproach and intervention. The Judiciary, on its part, must do the same and do all it can to retrieve its dignity beyond doubt while the Executive must enhance its capability to be efficient. Our collective and only homage has to be to the rule of law.
(The views expressed are strictly personal.)