Tussle between Executive and Judiciary continues

The tussle between the executive and the judiciary continues to hog the headlines with the former reminding the latter of the separation of powers and the latter saying no arm of democracy can claim supremacy and there should be mutual respect among them.
Even as Prime Minister Narendra Modi said the judiciary and the executive were part of the same family and should work to strengthen each other, the tussle has once again come to the fore in speeches made by Law Minister Ravi Shankar Prasad and Chief Justice of India Dipak Misra yesterday.
Some legal experts today said public sparring on such critical issues should be avoided and neither the judiciary, nor the executive should step on each other's shoes in the interest of democracy.

At a function to mark the Constitution Day yesterday, Prasad had reminded the judiciary of the principle of separation of powers between the judiciary, the legislature and the executive. He had said the concept of separation of power was as binding on the judiciary as it was on the executive.
Responding to the remarks, the Chief Justice had said that "there should be mutual respect and there cannot be any claim for supremacy by any of the wings".
Justice Misra had also said "we are not really interested to bring any kind of policy. ... But the moment the policies are formed, we are allowed to interpret and see that they are implemented."

A day before, at another event, Finance Minister Arun Jaitley had said the courts cannot perform the functions of the executive and the independence of the two will have to strictly maintained.

Responding to questions on the debate, senior advocate Dushyant Dave told PTI it would be good for democracy if both judiciary and executive do not spar in public, as both have their own respective rights.
"The government must realise that the judiciary has a role and they certainly can ask questions from the executive and the latter should not shy away from answering. The judiciary also needs to introspect and try not to interfere in the arena exclusively meant for the executive," Dave said.

Senior advocate Aman Lekhi said each wing of the State has a well defined role under the Constitution and the role of the courts was to ensure rule of law.
"I will not call it a tussle. The judiciary and the executive both are doing their work. The role of courts are absolutely different and they have a role to enforce the law. No government can claim immunity from scrutiny. The role of the court requires intervention if the situation demands," Lekhi also told PTI.
Another senior advocate Raj Panjwani termed the scenario of tussle as 'unfortunate' and said proper caution should be maintained by both the wings.

"This is unfortunate that basic principles of law have become a bone of contention. However, judiciary needs to refrain from stepping into the shoes of the executive. One of the modes which the executive could have resorted to is by filing appropriate application before the court instead of chest thumping in public," Panjwani said.
On earlier occasions too, there have been instances where the executive and the judiciary disagreed with each other.
Some months ago, then Chief Justice of India T S Thakur had asserted that the judiciary intervened only when the executive failed in its constitutional duties.
In 2016, Justice Thakur had also cautioned that no organ of government should cross the "lakshman rekha" and stressed that the judiciary has been given the duty to watch that everything remained within the limit.

Speaking at a function to celebrate Constitution Day last year, Thakur had also said the judiciary had every right to set aside any law made by Parliament, if it was against the Constitution or beyond the limits granted by the statute book.
Recently, the apex court in a detailed judgement had held that privacy was a "fundamental right" when the government had argued that the citizens have a right to privacy but that was not absolute.
In 2015, the top court and the government had been at loggerheads over the manner in which the appointment of judges was to be carried out.

The apex court had struck down the National Judicial Appointments Commission Act and asked the government to draft a new Memorandum of Procedure to lay down guidelines for appointments to the higher judiciary in consultation with the CJI and the collegium.
This was followed by the subsequent embarrassments for the Union government in the Uttarakhand and Arunachal Pradesh cases where the proclamation to impose central rule was challenged.