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Context

• Recently, the Supreme court asked the Centre to produce in 24 hours the file related to the appointment of former bureaucrat Arun Goel as an EC so as to demonstrate how ECs are chosen.
• In reply to it, Solicitor general (SG) Tushar Mehta urged the court not to traverse through a path that may disturb the constitutional scheme of separation of power.
• The incident highlights the tussle between the two branches of the state- the executive and judiciary. This edition of the burning issue will analyse this issue in length.

Previous incidences of the tussle

• Fundamental Rights vs DPSP: The tussle between the judiciary and executive began when the judiciary defended the fundamental Rights in the Golak Nath Case,1967 against the supremacy of legislature (Parliament) established by the executive under the leadership of Mrs. Indira Gandhi, the Prime Minister of India.
• Shield of “Basic Structure”: Mrs. Indira Gandhi in her next move got the three arbitrary constitutional Amendment Acts in 1971. The judiciary in response established the “Doctrine of Basic Structure‟ of the constitution through the Kesavanda Bharti case,1973.
• Struck down of NJAC– The NJAC judgment was a crucial turning point leading to the present confrontation. No doubt, there always has been a certain amount of creative tension but NJAC judgment became the tipping point. 
• Struck down of tribunal ordinance: Supreme Court struck down the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance of 2021
• Displeasure over Delays in clearing recommendations of collegium: The Supreme Court expressed anguish over the delay by the Centre in clearing the names recommended by the Collegium for appointment as judges in the higher judiciary, saying it “effectively frustrates” the method of appointment.

What does the constitution say about it?

• Division of powers: The constitution of India divided the power and authority among three organs of government –executive, legislature and judiciary.
• Article 50: The article puts an obligation on the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
• Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
• Articles 121: No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.
• Article 211: This provides that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
• Article 361: The President and Governors enjoy immunity from court proceedings.
• The doctrine of separation of powers: it is a part of the basic structure of the Constitution, although not specifically mentioned. It calls for the division of powers of the state among three organs to avoid the overpowering of any one organ.

Reasons for the tussle

• Wide range of powers: The power of the Indian Supreme Court is comparable to those of its United States counterpart, including broad original and appellate jurisdiction and the right to pass on the constitutionality of laws passed by the Parliament. In the exercise of its power, however, the court has been at the center of major two controversies concerning the constitutional and political order in India.
• Court’s FR vs State’s DPSP: The efforts by the court to give priority to the Fundamental Rights provisions in the constitution in a case where they have come into conflict with the Directive Principles, especially the broad ideological and policy goals of the Indian state and to which the executive and legislature have often given priority
• Power of judicial review: The court’s power of judicial review of legislation passed by Parliament, which has on numerous occasions led to stalemates that point to a constitutional contradiction between the principle of Parliamentary sovereignty and that of judicial review.
• The Collegium system: The collegium system of appointment of judges is popularly referred to as judges selecting judges. The collegium system is the Supreme Court’s invention. There is no mention of the collegium system either in the original constitution of India or successive amendments. From 1950 to 1973, the practice has been to appoint the senior most judge of the Supreme Court as Chief Justice of India. But the appointment and transfer of judges in the Supreme Court and High Courts became a matter of controversy between the judiciary and executive in 1973.
• Collegium System vs National Judicial Appointment Commission: The judiciary withheld the NJAC as unconstitutional and void. The Supreme Court objects to the inclusion of politicians in the NJAC particularly the two eminent members of the society. These eminent persons are to be nominated for a three-year term by a Selection Committee consisting of the Chief Justice, the Prime Minister and the leader of the opposition in the Lok Sabha, and are not eligible for re-nomination. The Court blamed if politicians are involved, what about judicial independence? Those against the NJAC argue that it will give the executive undue influence over the selection of judges.
• The decline of Parliament: Due to the failure of the executive and legislature to provide a solution to problems of the citizenry, citizens move to court for remedies. In the process of providing justice to the citizens, the judiciary sometimes crosses its boundary which leads to its tussle with the executive.

Consequences of the tussle

• Creates an Environment of distrust: the tussle creates an environment of distrust between the branches, leading to reduced cooperation and stagnancy in the reform process. some blame games and grandstanding are thrown in to either hide their limitations or to proclaim their superiority.
• The struggle of power: Both sides seem to be engaged in a game of tug of war where each wants something important, which is the power of judicial appointment to the higher judiciary. But what is surprising and difficult to understand is that both executive and judiciary believe in making appointments to the higher judiciary on merit which can contribute to the accountability and efficiency of the judiciary and yet there is no consensus between the two!
• Ignorance of separation of powers: Many of them miss the principle of separation of functions enshrined in the Constitution, a basic tenet of the Constitution for maintaining harmonious inter-institutional balance, as well as the differences in their respective ecosystems.
• A mismatch between expectations and realization: Several laws such as contract laws, environmental laws and even corporate laws are not fully in tune with the new aspirations. Interpretations of economic laws by the judiciary remain in a static mode. Even when they come late, they are at times not in tune with the direction the executive would like it to be. So, there is disenchantment with the judiciary. While some may be genuine, many of them are the result of the mismatch between expectations and realization.

Way forward

• Strike a balance, especially by the executive: Inter-institutional balancing, even with strong constitutional provisions, is a difficult task. While the three wings of the State (Legislature, Executive and Judiciary) have to work for maintaining that delicate balance, it is primarily the responsibility of the executive to strive extra hard for the same. Because the executive is the most visible organ of the State as it is the government for all practical purposes.
• Improving overall governance system: There is also a lot of disenchantment with the executive on multiple aspects of day-to-day civic life. Further, it is well-known that the executive is the largest litigant, clogging the judicial system. These are the result of suboptimal governance from the side of the executive.
• Human resource management and ensuring sufficient financial resources and operational freedom for all agencies are all functions of the executive branch, the government.
• Respecting the boundaries of each: To break this sub-optimal governance trap and to enhance the performance of all wings and agencies, those in responsible positions need to take a deep breath, think aloud and come out with appropriate solutions; understanding and respecting the boundaries of each of the three wings of the State. Institutional solutions on weighty issues like inter-institutional balancing and efficiency enhancement require a balanced, institutionalized approach.

Conclusion

• The “tussle” between the executive/legislature and the judiciary is not a real one. On the other hand, a judiciary and executive on the same page is disastrous for constitutional government and human rights.
• The problem is inbuilt into the institution. The executive has to ensure the judiciary that they have no intention of curbing their independence. Also, the judiciary should not be too touchy that every small little thing is a challenge to their independence. The tension between them is due to this confrontation.

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