Legislature Vs. Judiciary: Driving Discourse for Good Governance

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Legislature and Judiciary are the two key organs of the state. The functioning of the two organs has been demarcated carefully under the Constitution of India. The first organ performs the responsibility to “make laws”. The law of the land is inducted into the system through the legislature which is later enforced by the third organ i.e. Executive. The Judiciary the nodal institution performs the responsibility of interpreting the laws. The notion of interpretation of the statute primarily denotes to check the constitutionality of every law. However, on several occasions both the institutions are at loggerheads. The confrontations are usually on the premise of intervention with the independent functioning or overreach of power.

The Comparative Federalist Research Group, Department of Political Science, University of Delhi in collaboration with The Dialogue organised an event on the theme “Legislature v Judiciary: driving discourse for good governance”. The event was organised on the 16th October, 2017. The audience was graced with the presence of notable speakers who were chaired by Prof. M.P. Singh along with the convenor of the event Prof. Rekha Saxena. The distinguished panelists comprised of Mr. Vivek Tankha, Mr. Gopal Krishna Aggarwal, Mr. M.K. Venu and Prof. Ujjwal Kumar Singh having expertise in different fields of work enlightened the audiences with their deep insight and knowledge on the theme.

Mr. Vivek Tankha, a notable lawyer and a distinguished personality concentrated the premise of his speech on the quote of Montesquieu that “tyranny prevails when there is no separation of power”. The main point of argument was on the clear demarcation of power of both legislature and judiciary i.e. Separation of Power. The system of governance is based upon the separation of power where the duties of all the organs are clearly mentioned leaving no scope for interference. However, the powerful government often cherished as a growth indicator was seen as a prime reason for weak judiciary. This can be quoted as “Strong Government Sublime Judiciary whereas Weak Government Assertive Judiciary”. The contention was supported with the example of emergency era. But, recent phenomena counter the very notion on the premise of Public Expectation/Public Perception. It is a driving force that propels both legislature and judiciary whether it be promulgation of the anti-rape law or the privacy judgment delivered by the Hon’ Supreme Court of India.

Mr. Gopal Krishna Aggarwal, national spokesperson of the BJP, based his speech on a common issue of Judicial Activism v Judicial Overreach. The concept of Separation of Power in strict sense was rejected. It was said that all the organs are interconnected, and there is no absolute independence in the functioning. The duties of the legislature had been considered to be superior than the judiciary. The speaker mentioned various loopholes in the judicial functioning. The major issue highlighted was of transparency and accountability which the judiciary lacks and these issues have taken centre stage for criticising judiciary. There has been an increasing discontent between both the organs which needs urgent balance, and if this growing disharmony is not contained then the situation will further deteriorate. The issue of judicial overreach on issues of Jallikattu, Cracker Ban, National Anthem, Privacy, etc, have majorly intervened in the administrative matters. To reduce it, the role of Public Interest Litigation must be clearly laid and the scope of judicial intervention must be restricted to a certain extent.

Mr. M.K. Venu, founding editor of the Wire supported the limited role of governments and extended full support to a powerful judiciary. The need for a powerful judiciary arises to prevent misuse of state machinery. The notion of “Strong Judiciary and Weak Government” was taken from the angle of media freedom in the present situation. A caution was laid of growing incidents of violently curbing freedom of speech and expression. Even during the time of a strong government, there is a sense of fear and uneasy amongst the media which directly infringes the fourth pillar i.e. Freedom of Press. A preference for coalition governments was shown because it would keep a constant check on the misuse of authority.

Prof. Ujjwal Kumar Singh, learned lecturer of University of Delhi, highlighted the shortcomings of both legislature and judiciary. He did not lend his unconditional support to any organ. The centre of the premise was concentrated on Ambedkar’s ideology of the dire need to reduce socio-economic inequalities. The task of governance is primarily to reduce all inequalities and no political democracy would survive if the task is not completely achieved. The role of judicial activism often at times managed to reform the legislature whether it be the judgment to reduce the eligibility to contest elections by convicts. But, even the judiciary backed various draconian detention and deterrent laws on several occasions. So, is the conflict between the two structural/ contingent? There are often criticisms of authoritative judiciary, but is judicial overreach in administrative matters due to a governance vacuum? This had been answered with the example of growing violent vigilantism which led to the judicial intervention. But, to reduce the conflict and avoid confrontations it was laid that political issues to be resolved politically with dialogue or electorate or other measures can be adopted before moving to courts.

Once the speakers finished with their contentions, the floor was opened for questions. The students from various prestigious institutions asked different questions on several issues highlighted by the distinguished panelists. They not only restricted themselves on the recent issues of governance but widened their horizon by relating present issues with earlier times and how it can be effectively dealt in the coming future. The discussion was more solution-oriented. Some of the solutions were a need to bring the stakeholders of the judiciary such as the Bar Association for an active participation for judicial appointments. It may be true that legislature is more accountable to answer the people but does it work under compulsion? The issue arises when we witness slow functioning in the legislature. A strong need is felt to address institutional crisis i.e. to equip both the legislature and the judiciary to address issues with more efficiency. And lastly, to prevent gradual encroachments by both the institutions into each others functioning. With these learning, the floor was closed with the permission of Prof. M.P. Singh.