Who Governs: Government, Parliament or Judges?
Who Governs: Government, Parliament or Judges?

Can executive power be tamed by the judiciary or the legislature? Experts discuss on Separation of Powers

Former UK Attorney General Lord Peter Goldsmith, Senior Advocates Arvind Datar and Gaurav Pachnanda and Professor Pratap Bhanu Mehta yesterday spoke on the theme "Who Governs: Government, Parliament or Judges?"

Meera Emmanuel

A webinar on the theme "Who Governs: Government, Parliament or Judges?" on Saturday saw a four-member panel comprising senior lawyers and an academician discuss the modern-day workings of the organs of the State, both in India and the United Kingdom.

The discussion featured former Attorney General of the United Kingdom, Lord Peter Goldsmith, Senior Advocates Arvind Datar and Gaurav Pachnanda and political theorist, Professor Pratap Bhanu Mehta.

Watch the video:

[Watch FULL VIDEO] Who Governs: Government, Parliament or the Judges? Lord (Peter) Goldsmith, Arvind Datar, Pratap Bhanu Mehta and Gaurav Pachnanda speak on a host of issues.

Posted by Bar & Bench on Sunday, August 2, 2020

In defence of the Collegium System of Judicial appointments

One of the foremost topics that propped up for discussion was the manner in which judges are appointed in India, which itself has seen a tussle between the Executive and the Judiciary in the three judges cases.

Defending the prevailing Collegium system, Datar opined that empirically, there is no evidence that the Collegium system produces less than able judges.

Datar added that he would not say that the Collegium system is free from defects. However, he opined that the solution is to iron out the defects through small changes within the system.

On the other hand, he emphasised that the National Judicial Appointments Commission (NJAC), proposed by the Central Government earlier before it was struck down by the Supreme Court, was fundamentally flawed and destroyed any concept of independence.

Datar added,

"If your goal is to have the best possible judges, then whether it is the collegium system or the NJAC - they are all means to that end. It doesn’t really matter… The whole difficulty comes when your intention is not to appoint the best possible judges but to dominate or control the appointment system. That’s what the NJAC did."
Arvind Datar

He also disputed criticism that the Executive does not have any say in the Collegium system of appointments, noting that,

Even today, if there is a strong objection from the executive or by the Chief Minister of the State and it is a genuine objection, the appointment is not made ... The last mile is the executive; if it does not issue the notification - you can make the most wonderful recommendations and it could be completely stymied. Today more than 200 appointments have been cleared by the Collegium but not appointed."

Arvind Datar explains Public Interest Litigation

Can executive power be tamed by the judiciary or the legislature?

Lord Goldsmith observed that the two Miller cases in the UK has sent out a message that the courts are capable of intervening even in matters of high political significance as long as they can see a legitimate basis for doing so.

He was answering a query regarding the Constitutional significance of the Miller v. The Prime Minister case in the United Kingdom, where the Supreme Court intervened to prevent a recommendation of the Prime Minister to halt Parliament,

The Miller case came in the backdrop of Brexit, and the Prime Minister is stated to have halted or made a recommendation to prorogue the Parliament in a bid to prevent laws or motions that would oppose or delay Brexit.

On a challenge, however, the Supreme Court unanimously decided to interfere, eventually ruling against the Prime Minister on the ground that the Executive had presented no reason for its actions. Lord Goldsmith explained,

"Everyone knew what the reason was. It was all over the public newspapers, all over the public discourse. But the government, I think very badly advised by - dare I say - their attorney general and the others - didn’t put in any evidence as to what the reason was for prorogation. So the court was able to say ‘we don’t know what the reason is, no evidence has been put across, therefore there is no justification for what’s been done.’”

In contrast, Professor Mehta observed that in India, an almost "untrammelled executive power" has grown. He added that factors contributing to this growth included the creation of "National Security States" which licenses an incredible amount of executive discretion over life and liberty.

In such circumstances, "It takes a brave judiciary to actually take a stand", Professor Mehta said, adding that "unfortunately, the judiciary has let us down."

Another factor for such growth of the executive's power was that the administrative state has grown extraordinarily complex. This would take an extraordinarily sophisticated parliament to hold the State to account, Professor Mehta opined.

In India, however, the ambiguity over the formal role played by political parties has led to the legislatures becoming rubber stamps for the executive, Professor Mehta said. He also made note that "one of the unfortunate consequences of the anti-defection law" is that it disempowered individual legislators.

"The net result is that it is very hard to think of parliament as an independent entity unless a political party lets it function as such", Professor Mehta pointed. out.

“There’s almost no instance where parliament has been able to exercise its core accountability functions.”
Professor PB Mehta

On the Indian Supreme Court's response to calls for preserving civil rights

Professor Mehta went on to comment that given how every organ of the Government, including the courts, has effectively negated all "basic rule of law characteristics of the Constitution", it was surprising that lawyers and Judges profess to know what Indian Constitutional law is.

"Right now, I cannot in good conscience tell you what Indian Constitutional law is. I am always amazed that lawyers and judges act as if there is such a thing. The discretionary behaviour .. of every single branch of government, including the judiciary and particularly the Supreme Court, has effectively negated all the basic rule of law of characteristics of the Constitution. There is no integrity of process, there is no predictability, there is no sense of where stare decisis lies and where it doesn’t. Even basic things like Evidence Act has been violated", Professor Mehta said.
"The pieties of English law and our Blackstone and the fictions we are teaching our students in law school frankly do not describe the reality of law, accountability or power.”
Professor Mehta

Whereas Datar remarked that while the Supreme Court may sometimes appear as it is dysfunctional because of the poly-vocal nature of the Court, it is not all doom and gloom.

Mehta, however, responded, The minute we start saying that jurisprudence is matter ruled by individual judges and not by a court, we have already have conceded… I don’t think the problem is polyvocality… The issue is despite this polyvocality, the Supreme Court has managed to produce a consistent direction in not preserving civil liberties. It has managed to produce a consistent direction that when it matters to the executive, it will not challenge it. That’s why the crisis is serious. Polyvocality is fine… It is the underlying authoritarian consistency of this Court that is absolutely astonishing.

A related subject of the PIL jurisdiction of the Indian Courts was also discussed during the webinar. On this subject, Datar noted that one of the shortcomings of the PIL jurisdiction in India was the absence of definite rules.

Apart from issues of whether a particular Public Interest Litigant has the locus or the standing to move a plea over an issue, Datar pointed out that, in the absence of defined rules, the Courts have often encroached upon the executive or the legislative domain.

“Courts are not equipped to pass orders which have got large scale consequence or huge collateral consequences.”
Datar pointed out.

To illustrate, he queried whether the Court had the power to impose diesel cess or decide on matters concerning the administration of cricket in the BCCI case.

On the Role of Legal Professionals to hold the Judiciary accountable

Professor Mehta opined that legal professionals, especially senior lawyers or those in the top echelons of the legal profession have a significant role to play in shaping the legal and professional culture, which it turns shape how the courts function.

""When the Supreme Court is the culprit and the legal profession doesn't speak out, the alternative is going to be worse.. When the legal profession itself does not display, in public, a commitment to basic Constitutional norms… When the Indian legal profession teaches in public that under the National Security Act any form of impunity is justified - that damages faith in the rule of law even more than an occasional errant judgment", he said.

Datar also agreed with the view that more lawyers should write about judgments that they think were not correct.

On the absence of a "Written Constitution" in the UK

In the course of the discussion Lord Goldsmith noted that the question ultimately boils down to which organ holds the power.

“Does a written Constitution help? Would it make a difference?" in this endeavour, he mused, going on to opine that, ultimately it is not clear.

"Ultimately, you have so many exceptions and so many differences that you can probably find your way through it", he said.

He also noted, "Everyone says the UK does not have a Constitution. We do, in a sense. The Bill of rights 1689 was, I suppose, the first bit of a written Constitution. We have the Human Rights Act, which is also a sort of a Constitution. We did toy with the idea, during Gordon Brown’s Prime Ministership, to have a written Constitution. But in the end, it’s so difficult to write. So time-consuming to try get agreement on it that people sort of gave the idea up."

On "Contempt of Court" as weapon often threatened, but not fired

In response to a query on the use of Contempt jurisdiction by Courts, Datar noted that the Supreme Court has not been very consistent in exercising its contempt powers.

Chief Minister EMS Namboodiripad
Chief Minister EMS Namboodiripad 7 Tint

In this regard, he noted that Kerala's Chief Minister, EMS Namboodiripad who made “the most damning accusations on the Supreme Court”, was held in contempt but let off by the Court by imposing a Rs 50 fine and declaring that he does not know what "Marxism" is.

Whereas former Law Minister, P Shiv Shankar made strong remarks against the Courts, he was eventually exonerated from the contempt case. On the other hand, Datar opined that activist and writer Arundhati Roy was punished in a contempt case for something that she should not have been punished for.

Datar went on to remark that "Overusing the contempt jurisdiction is very, very counter productive and it damages the institution more than the person…"

He opined that ideally, the judiciary has to introspect why there is so much criticism. Invoking contempt for any kind of criticism is not a step in the right direction, he said.

Who Governs? Government, Parliament or Judges?

Coming to the pivotal question of the discussion, Lord Goldsmith observed that the classic, correct legal answer is that all organs of the State govern, in different ways and working together.

However, such a view does not tell the whole story of what the political reality is, he pointed out. He added, all the same, that if they all work together, only then will we have a fair system.

Datar noted that there is bound to be an overlap between the functioning of the State's organs. Whether or not the three organs stick to their functions would ultimately hinge upon the leaders in the country, he opined.

If the leaders are only at the stature of politicians, there are bound to be problems, he said. He added that if they reach a higher level of statesmanship, there will be proper separation of powers, he opined.

Senior Advocate Gaurav Pachnanda opined that the question of who ultimately governs may depend on who is not governing.

He elaborated that in a changing polity, there will be situations where one organ will do more. This way, there could be concerns of overreach. The answer to the question of who governs is, therefore, a question of who does not govern, Pachnanda said.

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