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 re-emerging contest on the issue between the proponents and those who are opposed to separation of powers is as much an intellectual debate as it is a contradiction between the forces of tradition and modernity. 

A petition signed by TL Angami, Advisor, GB/ Village Chief Federation asking the Governor to intervene in putting a stop to any separation of the judiciary from the executive will only further polarize the ongoing contention. However those on either side of the debate would be well advised not to take extreme positions. Rather a practical formula needs to be evolved 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. 

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 general public 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. While the Village Chiefs may have a point or two they should also keep the fact in mind that the elements of a functioning democracy which includes elections, the voters, representatives and a government have already been accepted into the body politic of Naga society. To exclude an independent judiciary from the present system is akin to cutting off an inherent part of the system with the result that the body itself suffers from maladies. For an effective and functioning democratic system the three organs as an entirety must act independently of each other.

The political executive on its part 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. While the best practices of Naga customary laws needs to be recognized, a via media must be worked out to bring together the merits of age old wisdom with the finer points of modern jurisprudence. No one should have any ground to complain about benefiting from the best of both worlds.