Friday, November 11, 2005

A potential national debate over the separation of powers? A focus on views expressed by President Kalam and Arun Shourie

The Indian Express has, over the last two days, been reporting about a simmering national debate over the issue of separation of powers between the three wings of government. According to the Express, this issue was recently raised by no less a personage than President Kalam at a function to mark the “National Legal Literacy Day” on November 09. This high-powered event was attended by Chief Justice Sabharwal and many prominent judges, legislators and executive officials.

Having gone over the full text of the President’s speech, I am a bit skeptical of whether the President did indeed intend to cause the firestorm that the Express suggests has been set off. The speech, read in its entirety, does not appear to be confrontational. President Kalam does, of course, have a record of being forceful about views that he holds strongly. One recent example has been his activist approach on the issue of granting clemency petitions to death row inmates, details of which can be found in this excellent article by Ritu Sarin of the Indian Express. (This issue revives an old debate in Indian constitutional law about the powers of the President in relation to the pardoning power – the article reveals that Justices Bhagwati and Krishna Iyer hold different views on the subject). However, I am not convinced that President Kalam intended to similarly highlight the issue of separation of powers.

Here are President Kalam’s words that the Express is highlighting in a report carried yesterday:

‘‘All along it has been said that the executive is the third pillar of democracy which is independent of the other two. I, however, have a different view. Please do bear with me if I say that the independence that is expected of this pillar is only in theory and mostly eroded in actual practice,’’ Kalam told an august gathering here to mark National Legal Literacy Day.

“How can we expect an executive to function independently when each of its action is questioned and its functioning is made regularly actionable by, and accountable to the independent powers enjoyed by the legislature and the judiciary. Large number of regulations exist to constantly keep the actions of the executive under the watchful glare of the legislature and the judiciary and that unquestionably takes away the much bandied about independence of the executive.’’

Kalam then reminded all that ‘‘controls and provisions for interpretation and answerability are also applicable to the legislature and judiciary, but in their cases a built-in system within would be available for discharging those functions.’’

The full text of President Kalam’s speech (available at his informative and interesting website) contains this important caveat:

I am not even for a moment questioning the whys or why nots of such controls on the Executive; I am merely stating a fact that I personally have perceived watching our democratic system in actual practice.

I did not have the benefit of attending the actual event and my skepticism may stem from having read yet another bland speech which repeats trite statements about maintaining harmony between the constitutional agencies of government. The Indian Express clearly believes that this will lead to a snowballing crisis. Today’s editorial in the Express features the President’s speech and has this analysis to offer:

Has President Kalam stepped into the void between constitutional theory’s grand narratives and its messy practice? Or was he obliquely hinting at a radically different, valid path? With most other presidents, this benefit of doubt would have been hard to give.

But since he’s a president with a fine track record so far, Kalam’s point on the lack of internal controls in the executive — the contrast is with the legislature and the judiciary — deserves to be seriously noted. He is saying, it seems, that when constituents of the executive step out of bounds, the matter should be dealt with in-house. Translated in terms of recent political events, it may mean that when the Cabinet asked the president to sign the Bihar assembly dissolution order, the executive should have had recourse to correct the wrong. Why let the matter reach the courts? If that was the burden of the president’s song, it deserves the widest possible debate. It should be noted, though, that President Kalam didn’t utilise a quasi-option: sending the dissolution proposal back to the Cabinet once. His predecessor, K.R. Narayanan, did just that when the NDA wanted Bihar for itself. The NDA had to back off. Whether the UPA would have done the same is anyone’s guess. Which interpretation of the president’s speech it will like is easier to predict.

This is of course an interesting interpretation, but I cannot help wondering if this is reading too much into what actually transpired. Perhaps the coming days will prove me wrong.

What seems to have been missed as a result of this focus on President Kalam’s speech is the truly refreshing and stimulating speech delivered by current Rajya Sabha MP Arun Shourie at the same occasion. Fortunately, the full text of that speech is carried in today’s Indian Express, and it provides rich fare for those interested in constitutional law and current national politics. In his typically blunt style, but also displaying his considerable knowledge about the Indian judiciary gained by closely observing the courts for several decades, Shourie offers his insights into many existing problems. While Shourie's political and ideological leanings may cause some of us to disagree vehemently with him on specific issues, his views are often astute and he often clearly identifies problems that seem invisible to many. His recent speech deserves to be read in full and will, I hope, spark a much wider national debate than the one suggested by the Express’ recent news-items.

What I found most interesting in Shourie’s speech was his closing prescription:

How is the Judiciary in turn to be made accountable? By thorough, professional scrutiny of judgments. This has been a real lacuna in India, and the contrast with the way judgments are examined in the US and other countries is as sharp as can be. I do hope, therefore, that, even as judges do their work of guarding the Constitution, as professionals we will strengthen the Judiciary by analysing judgments with the care that they deserve, and the proper working of our Constitution requires.

This is indeed one of the most important tasks for those interested in Indian constitutional law, and I am sure that those who contribe to, and read, this blog will fully endorse this position.

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