In the Gopal Subramanium fiasco, the Government has violated the principle of separation of powers enshrined in the Constitution, argues ANKUR KHANDElWAl

Mr Gopal Subramanium's decision to withdraw his candidature from being considered for judgeship of the Supreme Court has raised overarching questions. It has hit the core of the constitutional principle of separation of powers and the concept of checks and balances that flows from of it. The principle of separation of powers entails independent and uninfluenced working of the three wings, namely, the legislature, the Executive and the Judiciary.

Though the principle of separation of powers has not been explicitly incorporated as a provision in the Constitution of India, the Supreme Court has held it to be an integral part of the Constitutional scheme. The archives of the Constitutional Assembly reveal that the incorporation of the principle of separation of powers in the Constitution of India was debated at length. While the Constituent Assembly unanimously agreed to have the principle embedded in the Constitutional framework, it was divided on whether the principle should be explicitly incorporated.

In this regard, some of the members felt that the Constitution should closely follow the constitution of the United States which specifically incorporated the principle. Others preferred to keep the functioning of the three wings separate and give effect to the principle in spirit and avoid the creation of any watertight compartments which could not interact at all.

Eventually, it was decided that it was essential to adopt a harmonious functioning of the three wings to ensure smooth working of the Constitution with the separation of powers as the guiding principle.

The Subramanium incident has left the doctrine of separation of powers punctured. The alleged adverse comments on the appointment of Mr Subramanium by the Intelligence Bureau and Central Bureau of Investigation are indicators of the pervasiveness of the Government in matters that should not concern it.

The Supreme Court, by a nine-member bench, in the landmark judgement Advocates on Record v. Union of India [(1993) 4 SCC 441], gave effect to the collegium system for appointment of judges thereby, insulating the process from any undesirable external influences from the Executive or legislature. This ensured unbiased adjudication of matters in which the state or the Government may be a party.

India's independent judiciary has been a bulwark against various acts of political impropriety. During the Emergency, which gave BJP many of its top leaders, it was the judiciary that saved the possible break down of the Constitution. Therefore, the Government, by interfering with the established process of appointment of judges, has violated the principle of separation of powers, which forms part of the basic structure of the Constitution.

The new Government's enthusiasm to tamper with the process of appointment of judges is seen as an act to ensure that its policy decisions and acts, if questioned before the judiciary, are upheld without measuring them against the constitutional yardstick.

The Government possibly aims at having a free-arm swing. Perhaps, as Mr Arun Jaitley mentioned in his previous role as the leader of Opposition of Rajya Sabha, post-retirement roles for the judiciary make it easier for the Government to interfere with the working of the judiciary.

The Government should exercise restraint and refrain from giving effect to its please-fall-in-line policy, or else we might witness the collapse of the world’s longest written Constitution.

(The writer is a lawyer at the Supreme Court of India)