Mentor’s Comment:

The question deals with the separation of powers between three organs of government. However, the recent trend of frequent breakdown in legislature, it is believed that the judiciary has taken up the responsibility if legislature. The introduction should mention about this in general.

Further, talk about the increasing role of judiciary in recent times. The justice delivered by judiciary has increased peoples belief and changed perception. Bring examples to support your points.

Further, mention the reason behind such trends. Like, decreasing trust on legislature and executive, failing social justice goals by political bosses, decreasing level of debate, diminishing role of parliament etc.

Next, mention why this trend is wrong. Democratization is a coordinating effort and should involve all stakeholders, judiciary alone can not handle, pending huge number of cases, awaiting trials etc.

Next, mention the way forward. Revitalizing the legislative process of India, establishing more committees to smooth functioning of house, executive as well as parliamentarians should feel responsible etc.

Conclude keeping in mind the democratic features of India.

 

Model Answer:

In Union of India v. Deoki Nandan Aggarwal (1991), the Supreme Court observed in  “The power to legislate has not been conferred on the courts.” Our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another. This implies that there should be a broad separation of powers in the Constitution among the three organs of the state, and that one organ should not encroach into the domain of another. But recently, due to frequent breakdown in legislatures, it is believed that judiciary has taken up that branch’s responsibility.

Increasing Role Of Judiciary In Recent Times:

• There is a frequent disruptions of the role of the legislature, and on the other there is a dichotomy between social morality and judicial morality which is itself an interpretation of constitutional morality.
• Both are dangerous tendencies.
• In recent times, the Supreme Court verdicts have curiously become a matter of great curiosity with a great amount of anticipation about the judgments in pending cases.
• The same curiosity is missing about parliamentary bills/debates, which are absolutely vital to a parliamentary democracy.
• For example, the government amended the Foreign Contribution Regulation Act to retrospectively legalise political donations from foreign companies and individuals since 1976.
• This move was pushed through without discussion in Parliament and hardly any debate in the public sphere.
• On the other hand, we are witnessing various issues which should have been in legislature domain, but being addressed by judiciary like Witness protection Scheme or ruling on BS VI norms or decriminalizing section 377 or rulings of NGT.

Reason Behind This Trend:

• If the judiciary has assumed the role of the single most important pillar of India’s parliamentary democracy, built on separation of powers, it is mainly because of the degradation and lack of trust in the roles of the legislature and the the executive.
• The political process of the country is perceived to be failing to meet the goals of social justice, as envisaged by the founding fathers of the republic.
• Parliament, which is the supreme venue representing the people, has become a shadow of what it should be.
• The executive branch rarely attends parliamentary debates, affecting the sanctity of the forum.
• Lok Sabha met for an average of 127 days in the 1950s, in 2017 it met for a shocking 57. 72 Bills were passed in a year in the first Lok Sabha, the number was 40 in the 15th Lok Sabha (2009-14).
• The Budget session for this fiscal year saw usage of 1% of its allotted time in the Lok Sabha, and the Budget, the most vital cog of a national’s material basis, itself passed without discussion through the guillotine process.
• Parliament, instead of representing the highest democratic ethos, is pandering to electoral majorities, leaving it incapable of challenging out of date social/religious practices enforced by dominant interests. That is why it took 70 years for Section 377 to be partially struck down.
• It is then that Supreme Court and High Courts step into this dangerous void left by the executive and the legislature.
• This has often led to the accusation of judicial overreach and judicial activism which could lead to the erosion of trust in judiciary also.

Why This Is A Wrong Trend:

• The task of democratising society cannot be left to the judiciary, an unelected body.
• Instead, it must be through social and political struggles from the bottom, and not through judicial rulings from above.
• The abdication of responsibility by the legislature is even more damaging considering that the judiciary is groaning under the weight of a mammoth 3.3 crore pending cases.
• The backlog of cases in the High Courts and the Supreme Court is 43 lakh and 57,987, respectively.
• Thousands of innocent undertrials languishing in jails for a lifetime awaiting justice while judiciary is being kept busy with answering the mandate of legislature.
• A staggering 67% of India’s prison population awaits trial.

What Should Be Done:

• It is necessary to revitalize the legislative process in Parliament.
• Two crucial stages need to be strengthened: examination by committees and discussion on the floor of the House. Only about 70% of all Bills are referred to committees; this step must be made mandatory for all Bills, as in the British Parliament.
• Parliament should pass Bills only after due deliberation.
• During the last five years, about a fourth of all Bills were passed in Lok Sabha within 30 minutes, i.e., with practically no debate. Less than 25% of all Bills witnessed over three hours of debate.
• This trend of lack of deliberation on bills needs to be reversed and MPs must express their views and discuss the implications of various provisions before approving the Bill.
• It should be mandatory to record the votes on Bills to bring greater transparency and accountability of the MP to his voters.
• Role of judges should be limited to only interpretation of law and should leave the law-making business to the legislature and the executive.
• As it is against the constitutional principle of separation of powers and since judiciary is a non-elective body, it does not enjoy popular will to make laws.
• Our Constitution is our act of revolution and the Judiciary its protector.
• Judiciary can step in only when the fundamental rights of the citizens are violated.
• Every effort should be made in to ensure that the three organs of the State should not come into conflict.
• When we say that there should be a harmony among the organs we must also make sure that the conditions are created where that balance is able to be maintained.

If India wishes to hold on to her democratic credentials, parliamentarians must recognise that the task of representing the opinions, interests and needs of citizens is their paramount responsibility. In a country governed by a written Constitution, the democratic right flows from the attribute of constitutional sovereignty. We cannot claim our fundamental right or any other legal rights, unless we retain the structure of our sovereignty.