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New Indian Express
25-04-2025
- Politics
- New Indian Express
Friction between judiciary and executive: An unhappy conversation continues
In a democracy, there is nothing unusual about a fissure between the executive and the judiciary. There could even be a healthy discourse between the two branches. Yet, the criticism of the Supreme Court's activist posture in the Tamil Nadu governor's case has attained a larger dimension. Vice President Jagdeep Dhankhar chose to remind the country about Montesquieu's principle of the separation of powers. To drive home his point, he criticised not only the judgement, but also Article 142 of the Constitution, which enables the court to pass orders 'for doing complete justice'. In exercise of the power, the court fixed a time limit for presidential and gubernatorial actions on bills passed by state legislatures. Being dissatisfied with this gesture, the vice president feels that the provision resembles a 'missile' available with the Supreme Court that could be used against 'democratic forces'. There is an inherent irony in labelling the 'forces' that torpedo the decisions of people's representatives at states as 'democratic'. The same irony is perpetuated when the vice president, by implication, endorses the arbitrary action or inaction of a governor. Equally fallacious is his dissatisfaction about the Supreme Court not placing the case before a Constitution bench by invoking Article 145(3). Article 142 is an indispensable device that equips the Supreme Court to determine the impact of adjudication on the ground, in concrete terms. The court cannot resolve disputes in a vacuum, or in purely theoretical or propositional terms. Judicial pragmatism is not alien to constitutional adjudication. A two-judge bench in the A G Perarivalan case (2022) ordered the release of a convict in the Rajiv Gandhi assassination case after incarceration of about 30 years. This was done without relegating the matter again to the president, who holds pardoning power under Article 72. The court did so on finding that much time had already lapsed over communication between constitutional functionaries. In that case, the court invoked Article 142 for releasing the convict forthwith. This was done when the Tamil Nadu governor chose to sit on the state government's recommendation to release Perarivalan. The Supreme Court applies Article 142 in many other cases that are neither sensitive nor of public importance. It enables the court to decide the legal issues and meet the requirements of justice. The situations that call for invocation of the provision could be innumerable. Then there is the criticism that the Tamil Nadu case should have been referred to a Constitution bench, instead of the two-judge dealing with it. The vice president, by implication, has supported this criticism. This line of thought is unfounded for several reasons. First, there was no such request either from the petitioner's side or from the Centre's. The Centre was effectively represented by the attorney general, who placed all possible contentions before the bench. Secondly, given the number of Constitution bench matters pending before the Supreme Court, the possibility for an early decision in the case is bleak. In all probability, by the time a Constitution bench decides the case, the tenure of the assembly would end, which would practically nullify the whole exercise. This would result in aborting the bills passed by the elected representatives, due to gubernatorial and judicial lethargy. Thus, the reference argument lacks practical wisdom. Thirdly, and more importantly, the matter did not raise questions of interpretation of any substantial provisions of the Constitution. True, it warranted an interpretive exercise on Article 200 dealing with the duties of the governor and Article 201 dealing with the president's powers on bills passed by state legislatures. The court's interpretive exercise was, essentially, on the procedural aspects in the provision, and not on any sustentative part of the articles. Even the fixing of a time limit for high constitutional functionaries was essentially procedural. The meaning of these provisions was not a matter of serious controversy in the case. The power of judicial review vested with constitutional courts is a basic feature of India's Constitution. It is unalterable, even by a legislative majority. In India, a strong executive has often faced a 'weaker' judiciary. On the other hand, the judiciary has at times appeared stronger to a 'weaker' executive. The relationship between the court and parliament or the executive has been dialectical and asymmetrical in history. It started with the Golak Nath case (1967), where the Supreme Court endorsed the court's power to review the laws made by parliament that infringe on the citizen's fundamental rights. In Kesavananda Bharati (1973), the court asserted against legislative majoritarianism by holding that even parliament cannot pass a law damaging the basic structure of the Constitution. Thereafter, a mighty executive under Indira Gandhi blatantly interfered with the affairs of the judiciary even in the case of elevations, transfers and postings. During the Emergency (1975-77), the phrase 'committed judiciary' was synonymous with a fragile system that played a subservient role to the executive, failing to carry out its functions as the guardian of the Constitution. After the Emergency, the Supreme Court tried to assert itself as a powerful court, evolving devices like public interest litigations and social action litigations. Yet, the friction went on. When a constitutional amendment was made for replacing the collegium system, the court stalled it by a majority judgement in 2015. The verdict aggravated the friction between the two branches, often leading to the Centre sitting on proposals for judicial appointments for months or years together. When the vice president invoked the alleged transgression of powers against the background of the Tamil Nadu judgement, it clearly lacked a formidable foundation. Given the governor's moves, the Supreme Court was bound to act in time, upholding the rights and privileges of state legislative bodies. Alexander Hamilton, one of the drafters of the US Constitution, famously described the judiciary as the 'least dangerous' branch, hinting at the more dangerous executive. When a high constitutional functionary criticises the highest court and its directives, and the text of constitutional provisions based on the idea of checks and balances, it sends an unpleasant message to our democracy. No individual is above the law under our constitutional scheme. The judgement in the Tamil Nadu case underscores this democratic principle. (Views are personal) (kaleeswaramraj@ Kaleeswaram Raj | Lawyer, Supreme Court of India
Express Tribune
10-04-2025
- Politics
- Express Tribune
SC rules on high court chief justice's duties
Listen to article The Supreme Court has ruled that any inaction on part of a chief justice of the high court in response to a complaint of a judicial officer regarding the interference of executive agencies would be contrary to his constitutional obligations under Article 203 of the Constitution. "The Chief Justice of the Lahore High Court: firstly, acted within his constitutional authority under Article 203 to supervise the proceedings of subordinate courts, including the Anti-Terrorism Courts; and secondly, in light of the dismissal of the reference against the Presiding Judge by the Administrative Judge due to insufficient grounds, the Chief Justice was also fully justified in not taking further action on the transfer application, which lacked merit and was based solely on a reference that lacked compelling evidence. "We are mindful of the fact that the Chief Justice of a High Court in a province is the paterfamilias of the judiciary within that province. Therefore, any inaction on his part in response to any such like complaint of a judicial officer would be contrary to his constitutional obligations under Article 203 of the Constitution," a four-page judgement authored by Chief Justice of Pakistan (CJP) Yahya Afridi read while hearing a petition filed by Punjab Prosecution Department against the order of then chief justice Lahore High Court (LHC) on applications moved by the state seeking transfer of cases from one presiding judge of the anti-terrorism court (ATC) to another. The main thrust of the special prosecutor representing the state was that findings recorded in paras 8 and 9 of the orders were not only uncalled for but also beyond mandate of authority vested in the chief justice. It is to be noted that former LHC CJ Malik Shahzad Ahmad Khan had taken position against the executive agencies interference in ATC judges affairs. He even took strong exception to the Punjab government's request to transfer the ATC Rawalpindi judge. The Punjab government was reluctant to appoint those ATCs judges who were recommended by ex-LHC chief justice. He had referred complaint of ex-ATC judge Sargodha to the apex court which was hearing suo motu cases on six Islamabad High Court judges letter against the interference of agencies in their judicial functions. In the meanwhile, the government with the help of ex-CJP Qazi Faez Isa was able to elevate Malik Shahzad Ahmad Khan to the apex court. Four Supreme Court judges were not in favor of his elevation to the apex court as they believed the Punjab judiciary needed a strong administrative head. Unlike ex-LHC CJ, former Islamabad High Court chief justice was unable to take action on the complaints of judges regarding executive interference. A three-judge bench of the apex court led by CJP Afridi in its written order said it is essential to recognize the special supervisory authority vested in the chief justice of a high Court under Article 203 of the Constitution. "Essentially, Article 203 of the Constitution entrusts the Chief Justice, as the administrative head of a High Court, with the responsibility to supervise and regulate the proceedings of all subordinate courts within the province, including the Anti-Terrorism Courts. Applying this constitutional mandate to the present cases, it is our view that the Chief Justice of the Lahore High Court, in his administrative capacity, was not only empowered to address the issue at hand with his discretion, but also duty-bound to protect the Presiding Judges of the District Judiciary from any undue executive influence," the order said. The court noted that the reference brought by the state against the presiding judge of the ATC, alleging bias, was duly considered by the administrative judge. "After taking into consideration both the allegations and the response of the Presiding Judge, the Administrative Judge decided to file the reference, but ultimately dismissed it, indicating that there were insufficient grounds to proceed further. "Following this, the transfer application was filed, based solely on the fact that a reference had been made, despite no convincing evidence being presented to substantiate the allegations. This sequence reinforces the conclusion that the transfer request lacked sufficient merit to justify further action," the order said. "We have also been informed by the learned Special Prosecutor representing the State that Presiding Judges of the Anti-Terrorism Courts, whose bias had been questioned by the State, have since been transferred. "As such, there remains no live issue for immediate consideration. However, the State continues to be aggrieved particularly by the findings recorded in paras. 8 and 9 of the impugned orders, the costs imposed, and the referral of the matter for consideration of this Court in Suo Moto Case No. 1 of 2024, as recorded therein," the order read. "To our mind, the challenged action of the Chief Justice being essentially administrative in nature, and that too, relating to managing and supervising the subordinates under the constitutional mandate envisaged under Article 203 of the Constitution, ought not to be disturbed, lest the same are blatantly unreasonable, capricious or arbitrary, which are not apparent in the circumstances of the present cases," it added. The court also observed that the findings recorded in paras. 8 and 9 of the impugned orders, concerning the professional conduct of the judicial officers and state functionaries, appear to be somewhat personal in nature. "While, mindful of the gravity of the observations made, we are of the view that judicial propriety necessitates circumspection, particularly, when commenting on the conduct of executive and judicial functionaries and all the more without due inquiry. Hence, we deem it necessary to clarify that such remarks, whether favourable or adverse, must not be seen as having any binding effect in future proceedings. The praise directed towards judicial officers should not be construed as a shield that protects them from legitimate scrutiny, nor should the critical remarks regarding state functionaries, particularly the Prosecutor General, be treated as a sword to prejudice or undermine their future conduct. In essence, these observations are not to be regarded as determinative or conclusive in any subsequent forum and any future assessment of their conduct should be made independently, on its own merits, strictly in accordance with the law," the order said.
