“Justice and power must be brought together so that whatever is just may be powerful, and whatever is powerful may be just’ – Blaise Pascal.
Justice is the ultimate goal of human civilization, and power is the instrument to bring such change. Without power, justice is like a frailed older person, easily tiltable by the powerful wicked. Justice must assume the dual role of a guardian and a friend while interacting with “power” to sustain. In this context, the importance of mutual respect and safe spacing between justice and power comes into play. Therefore, the framers of our Constitution had to enshrine in the Legislature, the Executive, and the Judiciary their own safety nets. Separation of the Judiciary from the executive is accommodated in Article 50 under Part IV of the Constitution of India, the Directive Principles of State Policy. Article 50 reads, “Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State.” Our inquiry is to find the role of Article 50 in separating the Indian judicial and executive. Is it a separation of power or submission to power?
SUBMISSION TO POWER; NEW DEAL POLICY
In Divisional Manager, Aravali Golf Club v. Chander Hass, the bench constituted by A. K. Mathur & Markandey Katju at para 37 recounted the much-discussed event in the history of the U.S. Supreme Court famously known as New Deal legislation of President Franklin D. Roosevelt. The president came to power in 1932 during the economic crisis when the country suffered from the Great Depression after the Wall Street Crash of 1929. Roosevelt was to implement the “New Deal” plan, which was an attempt at government intervention in the economy. The constitutionality of such an extension of government power needed to be decided by the supreme court. Henry F. Ashurst, the chair of the United States Senate Committee on the Judiciary, held up the bill by delaying hearings and remarked, “No haste, no hurry, no waste, no worry – that is the motto of this committee.” The committee literally held the bill for 165 days, and President’s First New Deal initiative ultimately failed. But some of its implemented policies, like the social security policy and unemployment benefits, got immense popularity. Owing to the popularity of the New Deal policies, in 1936, Roosevelt got 98.3% of the polled votes. He was re-elected as the President of the U.S. Now, his proposed “Court-Packing-Plan” to reorganize the federal judiciary by adding a new justice each time a judge reached age 70 and failed to retire appeared as a real threat. Though President’s proposal to reconstitute the Court with his six additionally nominated Judges was not practically implemented, the Court changed its approach dramatically. In 1937, it began to uphold the Constitutional measures in favor of the Second New Deal. Referring to the issue, the Supreme Court of India, in the case of Divisional Manager, Aravali Golf Club v. Chander Hass, observed the following:
“The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits, there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact, the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy, many matters and controversies are best resolved in a non-judicial setting.”
JUDICIAL ACTIVISM VS. RESTRAINT
When a Court has to examine the executive or legislative action, to what extent should it use its power? When Judges rely on their policy preferences and go beyond their roles in enforcing Constitution to set aside government acts, it is called Judicial Activism. On the other hand, when the Judges refuse to strike down such government actions and leave the issue to democratic politics, it is called Judicial Restraint. The direction of the Indian Constitution in the matter of Judicial Review is well-founded under Article 226, Article 32, and Article 50. Under the modern formulation of the doctrine of separation of powers by the French philosopher Montesquieu, our constitution aimed to constitute three independent organs of democracy: the legislature, executive, and judiciary. In the case of Divisional Manager, Aravali Golf Club v. Chander Hass, the bench at para 18 rightly guided, “Judges must exercise judicial restraint and must not encroach into the executive or legislative domain.”
DM ARAVALI GOLF CLUB V. CHANDER HASS
- Facts: Chander Hass and other plaintiffs (respondents in this appeal) were appointed in the service of the Aravali Golf Club as Mali (Gardener) in the year 1988 on daily wages. Next year told them to drive tractors though there was no post for the tractor driver. After about a decade, they were regularized as Mali instead of tractor drivers. Their repeated appeals to the authority were rejected on the ground that to perform the function of a Mali, they need to cover a vast area of the Golf Club, and it is a part of their job to drive those vehicles. The employees filed a civil suit in 2001 in the Trial Court to claim their regularization as tractor drivers, but it was rejected. The Additional District Judge, Faridabad, accepted their appeal and directed the Golf Club to sanction the tractor driver post and regularize them on that post. The Aravali Golf Club then filed a second appeal dismissed by the High court of Punjab and Haryana, and the judgment of the first appellate Court was upheld. The Divisional Manager, Aravali Golf Club, and another (the petitioners) then moved to the supreme court, and Advocate T. V. George pleaded their appeal. Advocate Annam D. N. Rao represented the respondents. The Supreme Court heard the case at length and finally mentioned that the High and Appellate courts went beyond their jurisdiction, and the appeal was allowed on that ground.
- Whether regularization of services can be claimed against a post not yet created?
- Can the courts direct the creation of a post not o be considered by the establishments?
- Holding: To address the first issue, the court held that services and posts do not affect one another. Since there was no tractor driver post, the respondents cannot be regularized for the position that has no existence. To consider the second issue, the court held that the High courts or any other Court have no authority to direct the creation of a post as it is the job of the executives and legislators. There should not be any interference except in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society. It is always kept in mind that ordinarily, the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary. The appeal was allowed, and the Trial Court’s judgment was upheld.
Lord Atkin once remarked, “power corrupts, and absolute power corrupts absolutely.” Separation of power in the three organs of a state creates a check and balance to prevent the misuse of power. Some scholars rightly marked President Roosevelt’s success in the New Deal as a pyrrhic victory. Again, the realization that Ashurst’s abuse of judicial power made the ground for such an incident is also correct. In the Divisional Manager, Aravali Golf Club v. Chander Hass, the lower Courts, as well as the High Courts, exercised Judicial overreach as they tried to operate beyond their authority and tried to interfere in the areas of administration and legislature. This case is, therefore, a classic example of the Supreme Court’s judgment to uphold the doctrine of separation of power in the essence of correct interpretation of Article 50. The Supreme Court, in para 32 of the decision, observed, “Of the three organs of the State, the legislature, the executive, and the judiciary, only the judiciary has the power to declare the limits of the jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint.”
Author(s) Name: Saumen Chakraborty (Magadh University, Bodh-Gaya)