By Vivek K Agnihotri
The Supreme Court’s order of January 13, 2021, staying the implementation of the three farm laws, has raised several eyebrows and ruffled many feathers. The three laws are the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and the Essential Commodities (Amendment) Act, 2020.
Taken together, these form part of the Atmanirbhar Bharat package and, according to the government, envision a brighter future for the farming community. They attempt to introduce much needed reforms to help farmers get a better price by cutting out middlemen and improving marketing efficiencies.
It has been contended that under the Constitution, the legislature, the executive and the judiciary have their own broad spheres of operation. Ordinarily, it is not proper for any of them to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset and there will be a reaction. It has been argued that when a law is made by Parliament, it only can repeal or suspend its operation by making another law. The Court can, no doubt, declare a law ultra vires if it finds it unconstitutional, but it has no power to temporarily stay its enforcement even without recording a finding that it is prima facie unconstitutional. The Supreme Court has not recorded any such finding in this case. If the Court claims it can stay the operation of a law made by Parliament, then the latter too can claim that it can stay the Court’s orders. Would that be constitutional? It would result in a breakdown of the constitutional machinery. A note of caution, therefore, has been sounded that judges must exercise judicial restraint and must not encroach into the executive or legislative domain. Judges must not try to run the government.
First, there is need for clarity on the concept of “separation of powers” among the so called three pillars of democracy in the context of the Westminster style of parliamentary system that the Constitution of India has prescribed. Walter Bagehot, the undisputed authority on the English Constitution, has this to say on the subject: “The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers. According to the traditional theory, as it exists in all the books, the goodness of our Constitution consists in the entire separation of the legislative and executive authorities, but in truth, its merit consists in their single approximation. The connecting link is the Cabinet. By that new word we mean a committee of the legislative body selected to be the executive body.”
What Granville Austin, an American historian on the Indian Constitution, said about the Congress party and the government around the time of India’s independence, is equally true of the executive and the legislature in the case of a government with a comfortable majority they are like Siamese twins joined at the head, hip and toe. Thus, most of the time, it is an unequal tug of war between the executive and the legislature on one side and the judiciary on the other.
As far as the judiciary’s excursion into the territory earmarked for the legislature or the executive is concerned, the present order of the Supreme Court is nothing compared to its judgment in Visakha and Others vs State of Rajasthan (1997). Here, the Court took over the role of the legislature and executive to prescribe an extensive and stringent set of guidelines for prevention of sexual harassment at the workplace in the absence of any law or executive instructions.
Parliament followed suit, albeit after 15 years, and passed the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Supreme Court has repeated this performance several times since then, especially in Vineet Narain and others vs Union of India (1997) which preceded the Central Vigilance Commission Act, 2003; Prakash Singh and Others vs Union of India and Others (2006) and TSR Subramanian and Others vs Union of India Others (2013). It is a different matter that the guidelines issued by the Supreme Court in the latter two cases have been treated with indifference by the executive/legislature.
Moreover, there is nothing alarming in the Court staying implementation of a law. In the first place, it is a temporary measure. Further, it is not as bad as a constitutional amendment being struck down by a majority of 7:6 (Kesavananda Bharati case). Also, the stay was not granted ex parte.
The Supreme Court gave an indication of its intention as early as December 17, 2020, when it suggested formation of an impartial and independent committee of experts in agriculture to hear both sides and make recommendations. It also asked whether the government was willing to put the implementation of the farm laws on hold in order to facilitate negotiations.
The executive appears to have willingly acquiesced to the proceedings without demur. As a matter of fact, some of the leaders of the farmers’ agitation against the laws have alleged that the government is complicit in the decision of the Court in so far as it wants to pass on its headache to the judiciary.
Even as we approach the 71st Republic Day, it is worth noting that the tug of war with the executive and the legislature on one side and the judiciary on the other attempting to pull the rope towards the dividing line (Lakshman Rekha, in a manner of speaking) has been going on since the commencement of the first R-Day on January 26, 1950.
In Ramesh Thamar vs State of Madras (1950), the Supreme Court proclaimed that the liberty of the press was an essential part of the right to freedom of speech and expression (Article 19). It also quashed the order of the Government of Madras on March 1, 1950, issued under the Madras Maintenance of Public Order Act, 1949, prohibiting the entry and circulation of the petitioner’s journal in the state. The first amendment to the Constitution (1951) sought to undo the impact of this judgment. It also negated several other Court judgments, including State of Madras vs Smt Champakam Dorairajan (1951) by amending Article 15, empowering the state to make special provisions for the advancement of the socially and educationally backward classes. It also validated certain land reform laws by adding the Ninth Schedule encompassing certain Acts of the legislatures, which were placed beyond the pale of courts for infringement of fundamental rights guaranteed under Articles 14, 19 and 31.
The tussle over the executive legislature combine trying to give supremacy to the Directive Principles of State Policy over the Fundamental Rights reached a boiling point with the Supreme Court judgment in IC Golakhnath and Others vs State of Punjab and Another (1967). It placed amendment to the Fundamental Rights beyond the reach of Parliament, leading to the 24th amendment of the Constitution (1971), which attempted to tilt the balance in favour of the legislature. In due course of events, it led to Kesavananda Bharati Sripadgalvaru vs State of Kerala (1973), which enjoined that Parliament does not have the power to destroy or emasculate the “basic structure” or fundamental features of the Constitution.
At this point, the tug of war, so far conducted in a congenial environment, turned acrimonious in the context of certain other concomitant developments. What followed was open hostility in the shape of the infamous 42nd constitutional amendment (1976) during the Emergency. Balance and harmony were attempted to be restored in 1977 by the next government by bringing in the 43rd and the 44th amendments to the Constitution.
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The tussle continued, with pulls and pressures from both sides, and at the last count, the executive-legislature combine was run out on 99, when the constitutional amendment bearing that number (relating to the National Judicial Appointments Commission) was struck down by the Supreme Court in Supreme Court Advocates-on-Record Association vs Union of India (2015).
An interesting highlight of this predominantly congenial contretemps is that in M Nagaraj and Others vs Union of India (2006), challenging constitutional amendments 77, 81, 82, and 85, the petitioners argued that Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements using the power to amend the Constitution. The counterpoint advanced by the respondents was that the interpretation placed on the constitutional provisions by the Supreme Court becomes part of the Constitution and, therefore, is open to amendment under Article 368.
Unlike the presidential democratic system in the US, where the doctrine of separation of powers rules the roost, Indian parliamentary polity is characterised by the more mature maxim of checks and balances. Thus, while, on the one hand, the judiciary has the power to strike down any law passed by the legislature if found unconstitutional, the legislature, in turn, can overrule the interpretation of a statute by the judiciary by amending the law. Today, most of the constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is somewhat archaic.
It is more about harmonisation of functions of various organs of the State, somewhat in the spirit of Minerva Mills Ltd vs Union of India (1980), which pronounced that harmony and balance between Fundamental Rights and the Directive Principles of State Policy is an essential feature of the basic structure of the Constitution. Appropriately, the theme of the last annual conference of Presiding Officers of Parliament and the state legislatures held at Kevadia (Gujarat) in November 2020 was “Harmonious Coordination of Legislative, Executive, and Judiciary: Key to Vibrant Democracy”.
—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012