The essence of checks and balances must be imbibed in the functioning of every organ, it comes with certain limitations, mostly emanating from the doctrine of separation of powers and the judicial principle of self-restraint. Explain
Demand of the Question: Introduction: Essence of checks and balances through the separation of power and principle of judicial-restraint. Body: Instances of the organ of the constitution not upholding the principle of separation of power and judicial self-restraint. Importance of following both principles for democracy. Conclusion: Way forward to enforce both the principles.
MODEL ANSWER: The system of checks and balances is essential for the proper functioning of three organs of the government. Different organs of the state impose checks and balances on the other. This doctrine forms the basic structure of the constitution Article 50 puts an obligation over the state to separate the judiciary from the executive. Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional.
RECENT CASES OF VIOLATION OF CHECK AND BALANCES BY ORGANS OF CONSTITUTION 1. Discretionary power of Governor: The recent political crisis in Maharashtra has concretized the rising concerns regarding the office of Governor, as envisaged in the Constitution. Though article 164 empowers the Governor to appoint a Chief Minister this comes with an underlying pre-requisite of the certainty of a stable government. So, relying upon insufficient material to form government would be nothing but an unwarranted exercise of discretion. Karnataka, Goa are some other examples of misuse of discretionary power by the Governor. Even the use of Art 356 is being questioned as in cases of Arunachal Pradesh along with Uttarakhand it has been seen that SC has reinstated the previous govt along with legislature which was abolished by Governor. 2. Judicial Overreach by Courts:- Allahabad High Court passed an order stating that children of public functionaries/ bureaucrats in Uttar Pradesh should be enrolled only in government schools. National Anthem Case: SC mandated all cinema halls to play National Anthem before the feature film starts, during which all people should stand and the doors should be closed prior to starting of the anthem. Ban on Liquor shops along national highways: SC not only asked removal of all liquor shops along highways but went on to demarcate the precise distance in meters within which the law had to be implemented. The verdict and its details lacked evidence and rendered many jobless. 3. Executive actions violating checks and balances:- Instances like the passing of the Electoral bond scheme, RBI Amendment as Finance bill. Bulldozing through various Bill due to the absolute majority in the house. Not appointing judges even after collegium approval are some of the recent cases when the executive acted without any check on their powers.
CONSTITUTIONAL PROVISIONS REGARDING SEPARATION OF POWER 1. Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of the judiciary. 2. Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity. 3. Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution. 4. Articles 53 and 154 respectively, provided that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
Doctrine of Judicial Restraint: As a procedural doctrine, the principle of restraint urges judges to refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties. As a substantive one, it urges judges to consider constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated.
Adhering to the principle of Judicial restraint along with following constitutional provision regarding Separation of Power will go a long way to avoid cascading effect of erroneous functioning of one organ upon the other. They are vital for enforcing limitations on all 3 organs of the constitution and keeping a required balance among all 3 of them.
Government as a major litigant in each rung of the judicial hierarchy is responsible for delays and pendency. What are the implications of frivolous litigations? How far have the steps taken so far been effective?
Demand of the Question:
Introduction: Briefly mention about government litigation with facts
Body: Explain about frivolous litigation and Implications of frivolous litigations. Effectiveness of the steps taken to address the issue of frivolous litigations. Limitations of the steps taken.
Way forward:
MODEL ANSWER:
According to the Ministry of Law & Justice, government, including public sector undertakings (PSUs) and other autonomous bodies, are party to around 46% of court cases. This makes the ‘government’, taken as a single entity, the biggest litigant in the country. Government litigation includes service matters, disputes with private entities as well as inter-se disputes between two government departments and disputes between two PSUs.
FRIVOLOUS LITIGATION
A frivolous lawsuit is any lawsuit that is filed with the intention of harassing, annoying, or disturbing the opposite party. It may also be defined as any lawsuit in which the plaintiff knows that there is little or no chance of the lawsuit succeeding if pursued in court.
IMPLICATIONS OF FRIVOLOUS LITIGATIONS
- Pendency of Cases
Frivolous litigation adds a burden on the already overburdened judiciary. According to National Judicial Data Grid, there are over 3.5 crore cases pending across the Supreme Court (0.2%), the High Courts (12.5%), and the subordinate courts (87.3%). This has resulted in a growing backlog of cases. - Cost of Litigation
126th Law Commission Report highlighted that besides litigation cost the state bears the additional expenses of setting up courts and related manpower. This prevents the executive from performing its primary role in governance. Economic Survey 2017-18 also pointed out that the cost of various PPP projects increased due to litigation pending in court. - The sanctity of the judicial process
Frivolous and groundless filings constitute a serious menace to the administration of justice. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. - Public Interest Litigations as Publicity Interest Litigations
SC in justice Loya case said PIL had now become a facade for people hungry for publicity or those who wanted to settle personal, business or political scores. e.g. A petitioner filed a PIL seeking NIA/CBI probe into an incident of 2015 when a dais being prepared for the Prime Minister to address the public fell in Raipur in Chhattisgarh, two years after the incident took place.
EFFECTIVENESS OF THE STEPS TAKEN TO ADDRESS THE ISSUE OF FRIVOLOUS LITIGATIONS - Law Commission Reports
100th report titled ‘Litigation by and against the Government: Some Recommendations for reform’ (1984), and its 126th report titled ‘Government and Public-Sector Undertaking Litigation Policy and Strategy’ (1988). - National Litigation Policy (NLP), 2010
Its aim is to transform Government into an Efficient and Responsible litigant. This policy is also based on the recognition that it is the responsibility of the Government to protect the rights of citizens, to respect fundamental rights and those in charge of the conduct of Government litigation should never forget this basic principle. - Action Plan to Reduce Government Litigation
Ministry of Law & Justice in 2017, released a document titled ‘Action Plan to Reduce Government Litigation’ to create awareness about the severity of the problem, to see what steps have been taken by the different departments to reduce pendency, to explore ways and means to reduce such pendency. - Supreme court 10-point guideline to prevent frivolous PILs
To curb PILs from being hijacked by vested interests, the Supreme Court laid down 10-point stringent guidelines for all High Courts including imposing an exemplary cost on frivolous petitioners. - Section 209 of the IPC
Section 209 of the IPC provides for two years’ imprisonment and fine for the offence of fraudulently or dishonestly making a false claim in the court with the intent to injure or annoy any person. It creates deterrence against false claims.
LIMITATIONS OF THE STEPS TAKEN - Law Commission provided various recommendations in this context but its recommendations are not binding in nature which affects their effective implementation.
- NLP 2010 has failed as an initiative due to ambiguity. The NLP 2010 fails to provide a yardstick for determining responsibility and efficiency.
- The NLP 2010 also creates “Empowered Committees” at the national and regional levels, to regulate the implementation of the policy. But there is ambiguity about their role and powers, resulting in a lack of transparency in their functioning.
- There is no way of verifying comprehensive litigation data that is being methodically collected. As a result, we do not know who bears the responsibility of generating government litigation, the citizen who seeks to “redress legal rights” or is it an “over-enthusiastic department” preventing citizens from exploiting a welfare system.
WAY FORWARD
Suggestions from Economic Survey 2018: - Expanding judicial capacity in the lower courts and reducing the existing burden on the high court and Supreme Court. Need to downsize original and commercial jurisdiction of High courts and enabling the lower judiciary to deal with such cases.
- To free up judicial time, initiatives like Crown Court Management Services of the UK that are dedicated to the management and handling of administrative duties may be considered.
- Need to create more subject matter and stage-specific benches that will allow the courts to build internal specializations and efficiencies in combating pendency and delay.
Recommendations by Law Ministry’s Department of Justice: - Appointment of a nodal officer in every department at the Joint Secretary Level to coordinate effective resolution of disputes. Nodal Officer to regularly monitor the status of the cases.
- Promotion of alternative dispute resolution mechanisms and encourage mediation as the preferred form of dispute resolution in service-related matters.
- Appeals should not be filed in routine matters-only in cases where there is a substantial policy matter.
- An Intuitional ADR mechanism could be considered for the resolution of cases between the government and private bodies.
