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

The premise of *Samvaad: संवाद* was born out of Justice B.R. Gavai's keynote address on “Our Constitution and The Idea of India Therein.” 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 18th 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...

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

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