Judiciary and democracy

Judiciary must take steps to solidify rather than attenuate the sovereign status of the parliamentary democracy

In 1965 India experienced a serious constitutional crisis involving a face-off between a high court and a state assembly.

In 1964, through a habeas corpus petition, a two-member Lucknow bench of Allahabad High Court ordered the release of Keshav Singh — charged and sentenced for contempt of the House — on bail without hearing a representative of the House.

In response the House, on grounds that a court did not have authority to intervene in matters of powers, privileges and immunities of an assembly, passed a resolution ordering the production of the two judges in custody for apparent contempt of the assembly.

A constitutional crises ensued leading to the Indian President making a reference to the Supreme Court of India decided in Under Art.143…Vs Unknown. AIR 1965 SC 745.

The concept of separation of powers is fundamental to a federal democracy necessitating each organ of state viz the Parliament, the Executive and the Judiciary to work within their stipulated bounds without encroaching upon the functions or sphere of powers of the other constitutional bodies of state.

Trichotomy of powers in federalism dictates checks and balances between the three organs of state. Jefferson and Hamilton were keen to devise a Constitution which would avoid the dangers of absolutism experienced at British hands.

The US as well as the Pakistan Constitutions declare that the people of these lands desirous of devising an ideal polity, through their chosen representatives, do give themselves this, the Constitution.

The concepts of no law to be enacted without its passage by the Parliament and no tax to be imposed without the express authority of the assembly have thus evolved.

Domestically, rarely has the political landscape ever been so viciously divided, toxic, unaccommodative and intolerant. The evolution of such vitriol has by now a history that is not hidden anymore, with the hybrid experiment playing no less a crucial role. In the process all the institutions of state which provide stability, peace, justice and welfare are being tarnished and partisanly attacked or being brought into an unfortunate fray, emaciating the state fabric.

In such circumstances, while the political parties need to move towards accommodation, the people also observe each and every step, action or utterance of the haloed state institutions: the legislature, the executive, the establishment and importantly the judiciary.

The state needs less fractiousness and non-partisanship.

The judiciary along with other institutions unfortunately has not had a pristine past. Of late debate is rife about several judicial judgements and observations verging upon curtailment or interference in the powers of elected houses. The midnight opening of courts authenticating a VONC is still in controversy in certain quarters, although it was a step to affirm democracy. Comments, en passant, about the dysfunctionality of elected houses where one party has resigned from an assembly are cited. Obiter dicta averring that in history only one PM was honest are around while, it is stated, remarks upon the many men on horseback illegally imposing martial laws are rare. Grave questions have arisen over ostensibly highly objectionable audios involving the judicature. Insistence upon elections to provincial assemblies when ECP claims non-provision of financial, personnel and security wherewithal also has created a sense that sides are being taken while attempts through resignations to force an earlier election than mandated are ignored.

The Supreme Court in a 5-2 advisory ruling in a Presidential reference averred that defecting members of an assembly who cast votes against their party leader in the House, besides being disqualified, shall also have their votes not counted.

The Constitution lays down that such votes shall be counted as that alone will be proof that a member has defected.

After such a defector has cast his vote in support of a VONC, his case will be referred to the Election Commission which shall hear and decide upon the issue of disqualification of such a defecting member and forward the same to the SC.

Two of the five member Supreme Court bench hearing the Presidential reference had observed that the majority decision amounted to the Supreme Court, in excess of its powers, rewriting the Constitution, which is the sole prerogative of a Parliament.

The said judgment did not have any immediate consequences for the April 2022 national assembly VONC since the vote was passed without needing the support of the defecting ruling party members. But it did have ramifications in the case of the subsequent VONC in the Punjab assembly. Certain legal quarters looking for possible motives behind the instant judgment doubt that the court possibly gave this interpretation, after waiting a while, to make the VONC in the Punjab assembly infructuous, thus allowing one party to continue in power by discarding the votes of its defecting assembly members besides ordering re-election on the seats of the nineteen disqualified members.

Besides the paramount need to maintain complete impartiality, which should not only be done but also seen to be done through its judgements, to retain its position on the high pedestal of fair justice and wield unalloyed credibility, it is prerequisite for evolution of robust democracy, which has been buffeted around throughout our tainted history by many a quarter, that the judiciary must take all those steps which solidifies rather than attenuates the sovereign status of the parliamentary democracy, for long decried and diminished by certain camps. For consolidation of democratic institutions as a bulwark against bonapartism or other threats to freedoms or regional disaffections, it is essential that the ultimate sovereignty of the people is not only subscribed to in theory but actually implemented.

For the purpose of embedding and consolidating democracy in an evolving polity, it is worthwhile to quote, from the above cited Indian case. Justice Gajendragad, the author, wrote that restraint by the judiciary is the most unobjectionable course of action connected to matters relating to elected houses as well as issues political.

“These two august bodies (the Judicature and an Elected Assembly) as well as the Executive…must function not in antinomy, not in a spirit of hostility but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the Constitution of a democratic state alone will help the peaceful and growth and stabilization of the democratic way life in the country.”

Published in The Express Tribune, February 28^th, 2023.

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