Checks & Balances


Despite constitutional bindings, the separation of the judiciary from the executive wing of the state remains still a far cry due to obvious reluctance and foot-dragging on the part of the Nagaland government for many years now. The comment made by Yitachu, the Parliamentary Secretary Law & Justice on the occasion of observing ‘National Legal Literacy Day’ may just ignite some hopeful interest within the legal fraternity on the possibility of evolving a judicial system wherein separation of judiciary can take place and at the same time the traditional customary practices can co-exist by giving statutory recognition to it. But for many in the fraternity they may well have been more amused by this under-statement given the confusion and contradictory statements made on this subject by the State’s political leadership in the past. 

The Nagaland Bar Association (NBA) should think themselves as quite unfortunate compared to their counterparts in the rest of the country given that the sword of Article 371 (A) hangs over its head. Despite the Supreme Court of India issuing direction to the Nagaland State government to implement the provision of Article 50 (which calls for separation of the Judiciary from the Executive), the decision at the end would have to be a political one. Those who want a separation are also at a disadvantage for the simple reason that Article 50 (which enjoins upon the respective State government to implement this provision) is merely a directive and cannot be enforced in a court of law. As such, any change in the present status-quo can come about only if the current leadership in Nagaland demonstrates the political will to do so.

There is a misgiving among the die hard proponents of separation that the only reason of delaying this constitutional right to the citizens of Nagaland is that the politicians and the bureaucrats in the State do not like to check corruption and misappropriations of government money. Whatever the case may be, as a prerequisite to ensuring justice in a democratic society and to evolve an independent judiciary, separating the judiciary from the executive is a requirement. It would be worth mentioning that the elements of a functioning democracy include a free press, universal adult suffrage and an independent judiciary. This is true of all democratic countries, rich or poor, tradition or modern. The system of democratic checks and balances are exercised through the three arms of government -- the executive, the legislative and the judiciary. For an effective and functioning democratic system the three organs must act independently of each other, within the laws of the land.

The government would do well to speed up the process of separation by putting the necessary laws and administrative measures into place. In a State like Nagaland, the process itself can be delicate but in the long run putting in place such a system would deter potential abuse of power.