A very senior judge of the Supreme Court of India has, before an international gathering, spoken candidly about the level of his job satisfaction – it is just 5 per cent. The very distinguished jurist has bared his angst publicly on the functioning of the Supreme Court. He is of the opinion that the better part of the Court&’s time is being taken up by non-essential issues.

The distinguished judge could not have spoken too soon, or with greater relevance. For quite some time now, one has helplessly watched how the apex court has strayed into the domain of the executive and the legislature, resulting in a distortion in the delicate and critical balance among the three coordinate organs of the state in a democracy – the legislature, the executive and the judiciary. Indeed, this balance is the cornerstone on which the magnificent edifice of the democratic state is built, and rests.

The apex court is a highly respected institution, indeed the shield of the last resort for the common man against the formidable might of the giant Leviathan – the omnipotent modern state. The Court is a hallowed institution which is the defender of the citizen&’s life and liberty. And the ordinary citizen owes an abiding debt of gratitude to the Court as the unfailing champion, especially of the hapless underclass.

That said, it is time to redress the imbalance that has over a period of time crept into the working of what can be described as the ‘holy trinity’ of modern democratic state. It had started earlier but gained momentum in 1993 with the apex court judgment in the Vineet Narain case. The court virtually directed the Legislature to enact a law to accord statutory status to the Central Vigilance Commission to tackle corruption. Overlooked by the media was the fundamental issue as to whether the judiciary could direct the legislature.

The verdict was against the letter and spirit of the celebrated case of Keshvananda Bharati (1973) wherein the largest bench of the Supreme Court itself bestowed on the Indian nation the Magna Carta II – the “basic structure” of the Constitution. According to one of its main features, each organ of the state is sovereign, so to speak, in its respective domain. Just as the judiciary cannot allow Parliament to exercise even a very limited adjudicatory role in election disputes involving the highest executive functionaries, it needs to refrain from entering the domain of the other two organs.

Parliament had complied with the direction of the Court and enacted a CVC Act to give statutory basis to someone who is an executive functionary, supposed to be under the control of the Government. Ironically, even prior to 1993, CVC had legal status under the legislative power of the Government. The executive had discretion to appoint the most suitable person as its “corruption watchdog”. Secondly, if any question arose on the issue of interpretation of the earlier CVC resolution, the Government had the lawful authority to give its final interpretation.

The delicate balance of authority shifted to the judiciary with the enactment of the CVC law. It is common experience that delinquent employees often deliberately prolong cases over mere technical issues. They rush to courts which are already choked with a mounting backlog. The corruption cases virtually lapse into limbo. Prior to 1993, the Government was accountable at least to Parliament over procedural delays. Now, there is no authority that is accountable for early disposal of anti-corruption cases.

The CVC Act has made not the slightest dent in reducing corruption. It could possibly not have done so as it mentioned no new “offence”. A bare reading of the Act shows that it by and large reproduces executive instructions in the guise of law. It has tied down the executive in knots, and needlessly increased the potential for prolonged litigation. Paradoxically, it frees the Executive from even a modicum of accountability. Little wonder that the anti-corruption efforts are now mired in morass, further burdening the overburdened courts.

The collateral damage of a virtually judge-made law impacts democratic governance in terms of the ‘basic structure’. The judiciary is now entering what ought to be a ‘no-go’ area in the executive turf – executive appointments. The CVC is an executive appointee, accountable to the government of the day. The selection of all such administrative authorities is the exclusive prerogative of the government.

The last CVC retired several months ago. The apex court has intervened in his selection. This is taking up much of the court&’s time, which could have been better utilised by minimising the backlog of Constitutional litigation, serious civil and criminal cases and other matters in the judicial domain. The apex court also intervenes in another senior executive appointments, such as the Chief Information Commissioner, a post that is lying vacant for several months .

These cases may be isolated, but are now forming part of an emerging pattern. It has been reported in the national media that the apex court has fixed a time-frame within which the Government must implement the ‘one rank, one pension’ scheme for the armed forces. The reason for such a direction is that the ruling party had promised it during its election campaign. Such a direction is unprecedented in any democracy which is supposed to be under the ‘rule of law’.

Leave alone the question of the judiciary determining the conditions of service of Government servants – an executive prerogative – the overall issue touches the domain of the legislature. The Government of the day is accountable to Parliament for all such policy issues, not to the judiciary. Assuming that the ruling party may have gone back on any of its election promises, Parliament is the right forum to debate such political issues. If the Judiciary were to hold the Executive accountable to it, it would seriously affect democratic functioning and the prerogative of Parliament.

In a functioning democracy, it is par for the course for political parties to promise the moon to voters in course of the campaign. To some extent, it is inherent in the political process. Once the party is in power, it can only deliver what is feasible, and, more importantly, what the nation&’s finances will allow. Here, the role of the independent civil service begins, and the judiciary has no say in such matters. The constituted civil service, free of political commitments has to advise the party in power, according to Constitutional theory and practice.

This is the position not only in India but also in the Mother of Parliaments, the Westminster model which we have copied. Theodore Morison, a leading British political thinker and jurist has put it aptly : “The theory and practice of parliamentary government is that the decisions are taken by ministers and that the civil servants supply the minister with the information necessary for coming to a right decision. The civil service is thus a corrective of Party Government.” 

— The writer is a retired IAS officer