Powers of separation
Court observations on quota policy are a test for the system’s ability to
handle sharp differences The legislature should use this occasion not to
grandstand but to bring some integrity to its own process; the judiciary for
its part should not succumb to a jurisprudence of exasperation.
PRATAP BHANU MEHTA
THE Supreme Court’s order in the case concerning OBC reservations seems to
yet again set the stage for serious awkwardness in the relationship between
the judiciary and other branches of government. Recent decisions, subjecting
clemency to judicial review and passing orders with respect to demolitions
in Delhi, might suggest a titanic struggle in the making: representatives of
the people up against the guardians of the law.
There are good conceptual reasons to think that some degree of tension is inherent in any
constitutionalism. For instance, lawyers readily trot out a separation of
powers doctrine. But if you ask the question, who decides when separation of
powers has been breached, the answer turns out to be the judiciary. Thus
rather than establishing the equality of the three branches, the separation
doctrine inevitably ends up undermining itself by privileging the judiciary.
The formal letter of the Constitution, and lawyerly casuistry, will not
solve the inner conflict of constitutionalism. What is required for
harmonious relations between branches of government is more self-reflection
in each branch: this is a challenge for politics and legal culture, not one
lawyers can solve.
In the face of obvious parliamentary disregard for the delicacy of
legislation, the judiciary can retort rightly, as it did in Indra Sawhney
(II) that “unfortunately as a matter of political expediency governments
tend to knowingly violate the Rule of Law and Constitution and pass on the
buck to the courts to strike down the unconstitutional provisions. It would
then become easy for the government to blame the Courts for striking down
unconstitutional provisions.” Judges are correct in demanding legislation
have constitutional integrity. For its part, the judiciary has also tied
itself in knots. It would be otiose to deny that in the name of
constitutional integrity, it frequently usurps executive functions.
Its canons of interpretation pluck meanings out of thin air, making the whole
project of constitutional integrity obscure, and often it has a misplaced
sense of its own capacity to bring about change. While legislators will out
of political compulsion play footloose with values and procedures, the
answer cannot be indiscriminate judicial authority. How does this balance
stack up in three recent cases?
The court’s claim that clemency be subject to judicial review is odd, to say
the least. By its very nature clemency is discretionary and not the same
thing as justice. Subjecting the grounds on which clemency is given to
judicial review is tantamount to taking discretion away. The court’s
intervention in Delhi demolition cases is a mixed bag. Admittedly, the
executive has not done a good job of managing cities, but there is an
element of hubris in supposing that the courts should take on this task. An
analogy is often made with the CNG case. If the court can clean the air, why
cannot it reorder land use? But this analogy is misplaced. In the CNG case
the court, formally at least, used the device of continuing mandamus,
enforcing the governments own recommendations.
And enforcement was possiblein the end because both branches became partners. In the demolitions case,the court is implicitly questioning Parliament’s right to legislate on land
use; and it is underestimating the political economy implications of
demolitions on livelihoods. The legislature may have provoked the court by
self-abdication, but the court could have found a mechanism for the
judiciary and legislature to cooperate in finding a credible and feasible
solution to a messy problem, rather than simply overriding Parliament, and
then having to relent somewhat at the prospect of imminent violence.
In the OBC case, the court has come into the legislative process in medias
res. Even those of us sceptical of OBC reservations should worry.
Constitutional integrity is about how a decision is arrived at, as much as
it is about the content of the decision.
The court is asking that a parliamentary committee report be placed before the court. If the report is opened before it is introduced in Parliament, a vital norm will have been
breached; if it is not then it is not clear what the purpose is. The only
appropriate modus vivendi now would be extending the deadline by which the
report may be filed in court, so that the report is opened after Parliament.
The court is also preemptively trying to impose constitutional integrity on
legislation that has not yet taken final shape by posing queries on three
issues: the figure of 27 per cent, the manner in which the num ber of OBCs
has been arrived at, and the issue of the creamy layer.
Two of these issues are a product of the court’s own past interventions: 27 per cent is a
residual since the court capped reservations at 50 per cent. The number of
OBCs is a tricky question. The figure Mandal used has till now been accepted
as default wisdom. The legislature could, with some justification, argue
that it is responding to a reasonable interpretation of past judicial
determination. As Arun Shourie argues convincingly in Falling Over
Backwards, judicial doctrine on reservations has engendered as much lack of
clarity in this area as anything the legislature has done. Whether what
emerges from the court on this occasion is clarity over first principles or
another ad hoc compromise remains to be seen.
The judiciary has unequivocally excluded the creamy layer in the past. But
therein hangs a tale of the de facto limits of judicial power.
The creamy layer provisions have often not been enforced, the court has not been able
to punish anyone for flouting its orders, and judicial directives on
reservations have easily been overturned by constitutional amendment. The
recent judicial exasperation at the legislature should be seen in light of
this history. And one has to pity the attorney-general’s office in this
government for having to defend so many untenable constitutional cases.
But the legislature should use this occasion not to grandstand but to bring some
integrity to its own process; the judiciary for its part should not succumb
to a jurisprudence of exasperation. History tells us that courts and
legislatures can be conduits of law only when both are partners in upholding
constitutional values. But partnership presupposes consensus, and a divided
society makes the prospect of undivided government look bleak.
The writer is president, Centre for Policy Research, New Delhi
pratapbmehta@yahoo.com