Somewhere around the 1700's this French Philosopher called Montesquieu came up with an idea about how Government should ideally be run by three branches who were constantly fighting with each other. An odd way to formulate a government, but he argued, this would ensure that each branch went that extra mile to ensure that it was doing its job.
Tussles between the Judiciary and the Executive in India are not new. Each government had to face them, and there has been almost no policy that an executive could propose that it hasn't had to get past the Judiciary. Further, India's large administrative machinery and complex system of laws result in the government becoming the nation's largest litigant and a party to over 46 percent of the cases that are currently pending in Indian courts. Even this data, by the government's own admission, is not concretely available.
So, the question now comes is, does the government get treated specially when it comes before Indian courts or does it get treated like just any other litigant? The relationship between the central government and the Supreme Court is a complex one especially since both are, in theory, constitutional equals. So, when you have tussles between the two, one often views the other as infringing on the other's domain. Especially when it concerns remarks that are passed by the bench.
Recently, before former chief justice of India TS Thakur retired, the Union Minister for Law and Justice went on record stating that some of the remarks passed by the former CJI were avoidable and should not have been made. But the counter to that argument can be that as a constitutional authority that is equal to the executive, it is purely up to the CJI to determine and set the limits of the propriety that comes with the office and the executive shouldn't have any say in the matter at all.
In a democracy, the people are supreme runs the refrain, but India is not just a democracy, it is a democratic republic, which means that there is a democratic form of government that is preserved via certain constitutional institutions, of which the judiciary is one.
On Tuesday, the Supreme Court in a bench led by CJI Jagdish Singh Khehar was hearing a matter regarding the government's failure to audit NGOs funded out of state funds. The lawyers for the petitioners and the amicus curiae brought it to the attention of the court that the central government was empowered to audit the NGOs that were receiving public funds but out of 33 Lakh NGOs only three lakh had filed audit reports. While the rules empowered the government to go ahead and audit these NGOs this was never followed in practice.
The only exercise so far that had been conducted against such NGOs was to blacklist them. No action had been undertaken to investigate and recover the money or initiate prosecutions. Remarking on this the new CJI said, “the government must work. It is slow”. At the same time, the SC expressed its displeasure at the fact that officers of the lowest rank were filing affidavits before it and requested that only officers of a joint secretary level file affidavits before it.
Before the SC every litigant is the same, be it the government or an ordinary person. The court as the guardian of the Constitution has a duty to ensure that the executive complies with its obligations under the law. While it may be easy for political classes to often spin this as the SC overstepping on its domain, such tussles between the executive and the judiciary are signs of a healthy democracy.
In some cases, it may just be more politically expedient for the executive to wait for a court order before complying with the law, in order to not ruffle feathers with the party base. Especially in cases where you have NGOs funded by the government. If the executive is an ordinary litigant before the court, it also has concerns that are similar to an ordinary litigant. Judicial remarks are one of them, but they are one among many of the concerns that the government has when it comes to a litigation. Unfortunately, unlike other litigants, the government also has to be wary about the political ramifications of its legal arguments before the apex court, which sometimes makes it more difficult for the government to take a stance on an issue, or defend or oppose a particular law or policy.
But what we must also bear in mind is that the government's attitude, like every other litigant, also depends on whether it's playing the role of a petitioner or a respondent, or which part of the government is presently before the apex court. Usually, there is a tendency in a litigation for a respondent to try and drag the matter on when there is no interim relief that's granted against it while a petitioner tries to speed things on. When there's an interim relief, the respondent is usually in a hurry to speed things along and the petitioner is keen to slow the matter down. Judges aim to keep the matter moving efficiently, but as a matter of litigation strategy, adjournments are unfortunately employed. The government, like any other litigant, also does employ this tactic. Further, the administrative machinery of the government is so complex, that there is no firm system in place for law officers to be in a position to respond to the court when needed to. Which means, when the apex court asks the government to file an affidavit in two weeks, it is almost always the case that, be it the high court or the Supreme Court, two weeks later the government will seek time to file an affidavit, because the law officer responsible for the matter is yet to receive adequate instructions from the top brass.
When it comes to the Union executive (the president, prime minister and council of ministers), the Attorney General for India is the voice of the Union executive before the Supreme Court, and the statements he makes before it, bind the Union executive as he is their attorney. The Solicitor General's office and the Additional Solicitors Generals are also there to act in addition to the Attorney General for India. They handle other cases for the Union executive before the Supreme Court and other High Courts. However, like any other lawyer in any other case, their hands are also tied by the instructions they receive from their clients, who in this case is the administrative machinery or the political machinery responsible for a particular case. If in some cases instructions are not forthcoming, they will be constrained to seek time or take adjournments for not complying with deadlines.
Over a period of time, the lack of a rational system of responding to litigation before the Supreme Court and the country's high courts creates an overall impression that the nation's largest litigant has a lackadaisical approach to the courts. While this impression may not actually be the case on the ground. The government, due to these administrative mix-ups often ends up losing litigations that cost it large sums of money. To this reference may be drawn to a recent order passed last Friday by the Bombay High Court, which outlines the failure of the Income Tax Department, to remove office objections in a tax appeal, losing their right to appeal an order from the Income Tax Appellate Tribunal. The government when it tried to condone the delay, failed to fill up the blanks in the affidavit in support so they failed to have their delay condoned as well. The second time they did so, they failed to explain the number of days in the delay, and the high court held that it excelled the previous affidavit in terms of carelessness. The third time the revenue failed to make appropriate prayers in its application causing the court to remark that the application was purely an academic exercise and even then proceeded to offer the same reasons for the delay i.e., failing to explain why the delay in removing office objections was caused. Office objections are when an appeal is filed, but there are some technical lapses in the appeal, such as failure to include some documents etc, and the court office orders that they have to be removed within time or the appeal gets dismissed. The government, in this case, had to satisfy to the court why these objections were not cleared in time. They failed to do so on all three occasions. This was a tax appeal, so there were large sums of money involved and the administrative attitude of the government actually may have cost the public coffers money should they have succeeded on appeal.
The government needs to set up a system by which it is more responsive in the manner in which it attends to the litigations that are happening before the courts. Either where it is petitioner or it is respondent. Like any litigant, especially when it is the nation's largest litigant, the government has a responsibility to be active and concerned about its litigations and must seek not to take up too much judicial time.
The issue of creating a good impression before the courts is something that needs to be fixed across the board, not just before the Supreme Court, but also before the high courts and tribunals where the government is a party. This will not only help improve the ability of the government to litigate, it will reduce pendency of litigations and lead to fewer scuffles.
That being said, tussles between the executive and the judiciary when it comes to matters of policy are very healthy for a democratic nation and show that the system, at least at the top, is working.