Justice Ajay Kumar Tripathi Foundation Convenes A Trialogue, “Samvaad: संवाद” On “Separation Of Powers And The Idea Of India Therein” [16th November]

The illustrious panel comprised of Justice Dr. S. Muralidhar, Former Chief Justice Orissa High Court, Mr. Pavan K. Varma, Former Ambassador of India to Bhutan, and Mr. Mahesh Jethmalani, Senior Advocate, Supreme Court of India and former Member of Parliament (Rajya Sabha), and Ms. Shahrukh Alam, Advocate, Supreme Court of India, as an astute moderator.

The panellists shared a palpable chemistry and oneness on the merits of the chosen topic for the Third annual event of the Justice Ajay Kumar Tripathi Foundation.

Ms. Alam set the stage about the division of functions between three organs of the State, i.e. the judiciary, the legislature, and the executive, however, highlighting that frictions in the past occur mostly due to overstepping domains.

She sought to address certain questions with the discussion like – does populism, majoritarianism, or the Constitution circumscribe legal and political power; how do courts interact with populism or majoritarianism and how do the Parliament and executive respond to them; and what increases the sense of accountability in judges, since accountability is part of the Judicial institution, are judges circumscribed by constitutionalism or there is personal accountability?

The esteemed panellists were invited to present their opening positions and remarks, before taking the *Samvaad: संवाद* forward.

Perspective of the Executive

Mr. Pavan K. Verma, representing the perspective of the executive, expressed that the founding fathers of our Constitution decided that India will be a republic and a parliamentary democracy, and wrote an admirable constitution. He said the fundamental pillars, what have been called the triangular separation of powers between the executive, the legislature, legislature, and the judiciary were to maintain this edifice of democracy. However, the Constitution is not only a theoretical construct, it is important because it provides foundational framework.

When tested in practice we find there has been considerable and very regrettable erosion of what is theoretically a sound system of separation of powers.

He touched upon some concerns. He spoke of the bureaucracy and recalled of the time officers lived up to what Sardar Patel called the 'Steel Frame of India.' Officers had courage and conviction, and served as a check on representatives of the legislature. They also acted as a role model for those in the executive who were tasked to implement what governments decided to be their agenda and people's agenda over time. As a former bureaucrat, he felt that that steel frame, has alas become a plasticine meltdown. In due course somewhere the ethical framework lost itself on the altar of personal dividends, thereby blurring the line of the separation of powers. The executive's role and the legislature's self-willed agenda have, in a sense combined to create a monopoly of power, becoming more and more difficult to challenge in real life.

Reflecting on the moderator's question about majoritarianism, he said it has many connotations. Sometimes when a political party has by the will of the people a resounding majority in Parliament, and a sustainable majority in the Upper House as well, laws can be passed, which normally should have been discussed in greater detail within the legislative infrastructure. There are attempts to circumscribe the role of the Opposition. Sometimes, a judgment (referring to the Shah Bano case), is overruled by an ordinance because of majority in Parliament. There is an absence of a level playing field.

And finally, there is a question on the independence of the judiciary. If Chief Justices are given plum assignments after retirement, there is reason to raise the question on their judicial independence. If there is a situation of judicial overreach. It's because the executive has failed. As an example, he said if the judiciary has to decide how many times in a day garbage must be picked up in a particular locality because of a PIL, the Executive is not doing its work. That's not the job of the judiciary.

Mr. Verma also paid a humble tribute, reminiscing about Justice Tripathi's exceptional mind, his insight and clarity. He recalled the formidable reputation Justice Tripathi acquired as a judge, at a very young age.

Perspective of the Legislature

Mr. Jethmalani was invited to present the perspective of the legislature. He noted that the doctrine of separation of powers found its most robust and passionate exposition in the 18^th century, in a treatise written by Montesquieu, in his book entitled The Spirit the Law. In its pristine formulation in a nutshell noted that good governance and absence of tyranny could only be achieved if the executive, the legislative, and judicial powers are vested in three distinct bodies, as opposed to being vested in only one body. Montesquieu's theory on separation of powers, however, finds no place in the Indian Constitution. Although, in the Keshavananda Bharti case, in a minority judgment, it was considered to be a basic feature of the Constitution.

During the Constituent Assembly debates, according to Dr. Ambedkar, while the executive should be separated from the judiciary, good governance entailed harmony between the executive and the legislature. The Indian Constitution vested vast powers in the high courts of the States, and the Supreme Court at the apex of the judicial system, granting them the power of judicial review over executive actions under Articles 226 and 32 of the Constitution, respectively.

During the early years of independence, the judiciary worked harmoniously with the government of the day, upholding various measures, such as land reforms, bank nationalization, and abolition of privy purses. A defining moment in the independence of the judiciary arose with the declaration of emergency. Referring to the ADM Jabalpur judgment, he recalled Justice Bhagwati as a champion of liberty through his judgments, and Justice H.R. Khanna, becoming synonymous with judicial courage and ensuring his legacy is revered by future generations. The independence of the judiciary became the new by-verb, and in the new climate the judiciary asserted both its independence and power.

Concept of due process was brought in, Articles 14 and 19, Indian Constitution were expanded from time to time, and the judiciary itself, in three constitutional bench judgments, established the right to appoint judges to the high court in consultation with and in concurrence with the Chief Justice (which gradually evolved into the collegium system in the appointment of judges).

The Executive attempted to restore its role in the matter of appointment of judges by the creation of the National Judicial Academy. He referred to the Advocates-on-Record Association case where the appointment of judges by the 99^th Amendment to the Constitution was rejected by the Apex Court in 2015 by a 4 to one majority. Henceforth, Article 50, of the Directive Principles of State Policies, which envisaged the separation of the executive from the judiciary, was now fully consummated.

Real legislative power has never vested in the Indian Parliament except nominally. Parliament is not sovereign under the Indian constitution. The Parliament system of government was always government by the Cabinet. Bills laid on the floor of each House of Parliament are prepared and tabled by the concerned Ministry, and their passage through the legislature is piloted by the Minister concerned. A three-line whip ensures voting compliance of a legislator on any bill which the government of the day is intent on passing and by the 10^th Schedule, failure to comply can lead to disqualification of a dissenting legislator. If the ruling party legislators are bound to the government of the day. The Opposition can oppose Government legislation. A task which in more recent times is discharged with sloganeering and disruptions of the House rather than informed debate and discussion. The most efficacious work in Parliament is performed in the various Parliamentary Committees. In sum, given the complexities of a modern day state and the nature of governance in contemporary times, the pristine form of government and separation of powers prescribed by Montesquieu is both impractical and non-existent. However, Montesquieu and his theory of separation of powers is important because it has given rise to the system of checks and balances, which is a part of the governance system in every constitutional democracy, or any democracy in the world.

Mr. Jethmalani fondly recalled Justice Tripathi as a great judge and the most courteous of judges. He had many convivial interactions with him as a lawyer and thereafter as a judge. He said, Justice Tripathi was one of the finest judges he had had the privilege of appearing before. He became nostalgic about the passing of Mr. Ram Jethmalani, in 2019, and noted that Justice Tripathi, was one of the earliest visitors to condole with the family at the time, a courtesy he deeply regrets not being able to pay back. He wished to have a long association with the family.

Perspective of the Judiciary

Justice Dr. S. Muralidhar presented the perspective of the Judiciary. He started his address by asking, “how much do we value democracy?” When Dr. Ambedkar talked of constitutional morality, he meant practicing constitutional values by people administering power when they wielded power. One of the first questions we need to ask ourselves when we talk of different organs of State is, how democratic are these organs of State? Agreeing with Mr. Verma, Justice Muralidhar said over the last 75 years, there has been a steady erosion. He concurred with Mr. Jethmalani, about the impracticality of the ideal of separation of powers. Separation of powers won't be effective unless these institutions are democratic and wield their powers responsibly. Irresponsible wielding of power or a failure to wield the power will defeat the very purpose of the whole constitutional structure.

He observed that the way we have modelled our institutions is essentially non-democratic. He said that we had not really understood, much less internalized values of democracy such as fraternity, liberty, equality. The CMO / PMO Model of governance has become very popular, becoming a power centre, with the concentration of power in one office, which is the head of the Executive, supported by trusted bureaucrats. The shifting of the balance of power, within the organs is so palpable. The judiciary, is least democratic when functioning within itself. He questioned the concept of master of the roster and how judicial business is distributed. He also questioned the vesting of administrative power in one individual, the Chief justice. There is a tacit acknowledgement that power rests in individuals. A very deep soul searching that has to happen.

Speaking about checks and balances, he reflected on major inflection points. He talked about the importane of Keshavananda Bharti case, as the Judiciary putting checks on powers of Parliament for the first time. A very important check. A majority in Parliament cannot simply rewrite the Constitution and take out fundamental rights altogether. They established that the basic structure is the framework on which you build an edifice. He also recalled the SR Bommai case, on judicial review of President's rule. It was held that ratification of Parliament was required to impose President's rule. On the appointment of judges by judges, that power gets limited when the file enters the PMO. Under the idea of what are checks and balances, another major inflection point was impeachment of judges. The check that the legislature has on the judiciary. However, a party in power can simply abstain from voting and defeat that whole motion of impeachment. The scheme may be fine, however there are remarkable ways of subverting the schemes.

*Samvaad: संवाद*

The moderator remarked that what is understood from all three opening positions was that separation of powers is basically a means to an end. That is not the problem. The issue is democracy or democratic deficit and the decentralization of political power. She invited responses from the panellists, while posing the following questions

What would Montesquieu have thought about the Indian experience, had he encountered it, what kind of theory would he have come up with?

Mahesh Jethmalani (MJ): Let us not use Montesquieu as a reference point. Because he was a creature of his time. As a Parliamentarian, my best work done was in parliamentary committees, by scrapping obsolete laws and backlogs. For example, the railway magistrates courts were clogged up with cases of ticketless travel. It was made punishable with instant fine and finished.

Pavan K. Verma (PKV): Do we judge the need or the importance of a principle which is inseparable from democracy by asking ourselves whether individually the 3 entities which need to have checks and balances are democratic or not? Or do we uphold the principle as supreme in itself? In Keshavananda Bharti case the judiciary established checks, even if in its own working, the judiciary may not be entirely democratic, it upheld a principle of democracy which is essential for the functioning of a democracy. How do we view, then, the political process of decentralization? On the appointment of judges, I think there is no other country in the world where judges appoint judges. We adopted that principle, perhaps for valid reasons, because we had an excess of executive interference in ensuring pliable judges in the past. However, it is illusionary because the Judiciary does not have powers of appointing itself because it can only make a recommendation and from the Government that recommendation has no time limit for response. The Government can veto that independence by sheer inaction which is not happenstance. On the ethicality of each separate institutions we can have a separate debate. That valid question here is are we a functioning parliamentary democracy, or not? And if we claim to be, then are checks and balances important or not? And if they are, are some definitions of separation of powers to be pursued or not? Or do we give up? For instance, we talk ourselves out of a challan and the same evening, talk about the damnation of the country because of corruption in high places. Does that mean we do not put CCTV cameras to monitor speeding, which is the only way to actually independently use technology to enforce laws? The goal cannot be given up, and which has to be the separation of powers, not in the French sense, but through checks and balances. If the judiciary becomes an extended colluder of a majoritarian executive in Parliament, and a pliant bureaucracy, then we are not a democracy simply put.

Dr. S. Muralidhar (SM): I don't suggest that we do away with checks and balances. However, there are inherent weaknesses in how the institutions are functioning, which need to be addressed. It's a work in progress. Still evolving. For instance, A good structural engineer will tell you the weak points in the foundations of a building, and which cracks to before there is a danger of the edifice falling. We all want that edifice to remain. I think it's important to introspect, to know where we are and why we are.

How do you view coalition politics and proportional representation rather than first past the post?

If the Parliament doesn't really represent the will of the people and elections are not adequate check on parliamentary legitimacy, then every decision making should be contested in its own right on its own merits. So what do you feel about contestations on the street – protests / people's tribunals / citizen action?

MJ: The problem of democracy, the street as a site of contestation and otherwise structural things like proportional representation. There's no gainsaying the fact that free and fair elections are the heartbeat of a democracy. It is a necessary condition for democracy. It is not a sufficient condition. Let's identify what is considered to be the sufficient conditions, and where these sufficient conditions are deficient? How do you reform the wrongs taking place in those institutions? The same institutions, hitherto vested with power by the Constitution itself, to be a check and balance. Ultimately, eternal vigilance, as the cliche goes, is the price of liberty. It is a citizen's responsibility. There's an elected government. An unchallenged election, freely and fairly elected. If a government triumphs repeatedly you can't blame the Government.

Citizen action is a good thing. The redressal mechanism to government excesses and executive overreach are under Articles 32 and 226. I have great hope in our democracy, with the checks and balances.

The real check on government excesses, including bad laws, is the opposition. If a dissenter within a political party wants to express opposition to the party's decision, he should be permitted to. However, there is fear of disqualification in Parliament if a Bill is challenged. So should then the X Schedule go? Mr. Ram Jethmalani strongly argued against the whip. He said the whip is an anathema to democracy. This is how we now learn how legislators lose their freedom of speech.

PKV: What is the system that allows it to remain a democracy? What are those checks and balances? How do you make the citizenry less corrupt? Does citizen action help? Yes, of course, a vigilant citizenry is, in my view the best check to all accesses in all three branches. However, people are often intimidated because of extreme policing and delays in the justice delivery system. There has to be rethinking within each institution.

On the issue of dissent within a political party, it should be allowed. Defection and an establishment of payment or quid pro quo for a vote or a speech should be the sole test for disqualification. Even if its not an easy thing to establish. However, what is the alternative? Has Xth Schedule stopped defection, even if that was the purpose? It was supposed to stop policing governments and government instability and defections. However, even if Xth Schedule does not serve a purpose today, however, cases pertaining to the Xth Schedule clog up the Supreme Court, which is unnecessary. A dissenter, knows his political future in that party. It is difficult for most people to pursue principle over short term gain.

Dr. SM: There are judges who stood up for people's causes and people's rights and some judges faced consequences for that. Same for a Parliamentarian, who fears losing my seat in Parliament for speaking against the party. Or officers who are becoming supine.

To answer the question about 1^st past the post, is why we need a strong election commission. Giving example of three recent developments in Sri Lanka, Bangladesh and USA. In Sri Lanka, people's power was asserted after a very problematic election in the Rajapaksha's time, with now another election with surprising results giving people hope. In Bangladesh, there was another kind of revolution, however, it is not working out the same way, and it is causing concern. In USA, separation of powers cannot even be debated. However, public discussion and debate is what will remind the institutions of the process through which they have been brought into office. That is a message that should go out, for example through Media (which unfortunately is corporate controlled). The matter needs to be addressed at various fronts. Amidst all the control of the media there are some influencers who have their Youtube channels, there is this alternate media that's emerging and objectivity is still being sought. The human spirit is so strong and resilient that it will assert itself.

But on that note, a very important question that had actually come from the Foundation is, how do you institutionalize courage? How do you even start to think about institutionalizing normative ethics?

MJ: We may not get an answer to that, but it was an interesting question, difficult. Voice of citizens ensures these institutions work independently, and live up to certain expectations that enable not only democracy, but good governance in certain ethics of public life, and with added courage of convictions. Courage begins where fear ends. That's the bottom line. If a judge is not worried about his legacy, just courage of convictions. In defence of powers that be. You have to sometimes discover whether the narrative being churned out is actually true or not.

Dr. SM: We have criminalized protest, even as many citizens are voicing their opinions and getting severely punished for it. Democratic expression of opposition or protests is quelled, and termed anti-national or criminal. So we have to ask ourselves, what more do we expect of citizens to do? And how are we making it safer in India for people to protest? Who's helping the citizenry? When we talk of democracy under a rule of law. It is not about a numerical majority of a party in Parliament. It is a Parliament which believes in diversity, in inclusivity, and where the voice of the minority will matter. This is also a counter to majoritarianism. India is a lovely mosaic of different colours and flavours. That's what makes the flavours of its democracy. Its important to nurture and not become a homogeneous non-thinking mass, who will not question decisions.

We have to have some role models, at least for the younger generation of people who've questioned power and paid. We need to keep reminding ourselves exercise of brutal power is also a phase in history. Julius Caesar, for example, every time he won a war and rode into Rome he had a person standing behind him in his chariot, just to whisper in his ear “this, too shall pass.” It is the eternal hope of humankind that all brutal regimes, oppressive regimes have a limited shelf life. There will be a time again when people are able to assert their rights, speak their voices. There are enough role models around us, people who fearlessly fought for people's rights.

What is the post-independence reality in India regarding the doctrine of separation, of powers?

Conversation was also had on the erosion of independence of certain institutions which underpin these separation of powers. For example, if the media as the 4^th pillar of democracy, is compromised, being run by corporate leaders who run businesses and are susceptible to government pressure. Without the independence of these institutions separation of powers within an effective democracy cannot work. The broad point made was, if our organs, including the Election Commission, the NHRC, the Media, the Right to Information commissioners, worked exactly the way they are expected to work, we will be a far better democracy and a far better India. How do we insulate them? It is becoming a transparent impediment to a level playing field in democracy. In this information age. This is the post-truth age. The era of cliched narratives. They're not critical enough. They're ideologically aligned with this government. Being aligned is also freedom of expression.

Audience Questions:

As we look at our institutions, we see that transparency is something that gets essential for democracy to function and democratic values to come in. How can transparency then be pushed forward to ensure that these questions of jadedness go away, and we ensure that the separation of powers are then truly seen?

Dr. SM: I am for transparency, permeating every institution, including judicial decisions. But I don't see the judiciary permitting that for a long, long time, and there are sometimes good reasons. There may be intelligence reports which may be unflattering to a particular judge. You ruin his whole life. Right intelligence reports may not be true, because intelligence reports are only intelligence reports. They're not facts sometimes right? They're just tidbits of information. So I'm all for transparency even there. But there may be higher reasons to prevail, and I think the judiciary is the best judge of what should be revealed and what should not be revealed. How many of the bills tabled in Parliament, are in public domain? We have to consider it as a work in progress. As long as we are in those institutions, we are in those positions of power, we keep contributing to making it more transparent. For example, in Orrisa, a PIL portal was set up as a little attempt at transparency. All these small efforts might build up to a greater effort, and will leave behind what are called good practices and good examples for others to follow.

MJ: I agree the change has to be incremental, just because you can't make sweeping changes, it doesn't mean you give up the effort.

How do you see education playing a role as a change maker, as a polarizer, or a balancing agent? How do you see this play out as practitioners, as academicians, or as lawmakers?

Dr. SM: The classroom in a school is a microcosm of society, right where we plant seeds of prejudice.

There's a powerful report recently published in Tamil Nadu by Justice Chandru, where he has talked about how caste plays out in the classroom. Also, wealth, economic disparity, social disparity plays out in the classroom. This is actually a reality playing out in the schools in this country. As civil society, we should talk more about it. Instead of actually becoming more inclusive, we seem to be going the other direction. But I'm not losing hope. The hope is we have these dialogues and discussions in public domain, and hope for that change to come about.

The *Samvaad: संवाद* concluded with heartfelt gratitude to the entire legal and non-legal that came together to participate in the event. Also in attendance were Judges of the Supreme Court of India and other High Courts, Senior Advocates of various high courts, dignitaries from various fields and family and friends both present in-person and virtually.

The Foundation was inaugurated on 27 November 2022, at New Delhi. *Samvaad: संवाद* was the third annual event of the Foundation. The functioning of the Foundation is overseen by Justice Tripathi's wife, Mrs. Alka Tripathi, as Founder and Trustee along with his daughters and son-in-law, Anushree Tripathi, Consultant (For Law on Climate Change), Ministry of Environment, Forest and Climate Change; Aditi Tripathi, Advocate-on-Record, Supreme Court of India; Aakriti Tripathi, Associate Professor, Jindal Global Law School, and Mr. Rahul Narayanan, Senior Corporate Counsel (Litigation), Amazon.