In any political system, for stability to be achieved, the powers of the various organs need to be balanced. This is where the doctrine of separation of powers comes in; it deals with the three organs of governance, which are the Legislature, Executive, and Judiciary. This theory was first propounded by the French scholar Montesquieu in the year 1747 in his book titled ‘Espirit des Louis,’ which roughly translates to ‘The Spirit of the Laws.’ In this book, Montesquieu finds that if a situation arises wherein one of the branches of government has all the power concentrated in its hands, then the government descends into tyranny, it is to avoid a situation such as this that he proposes a clear division of powers between the three organs. He proposes that one organ of the government should neither interfere in nor exercise any functions of the other two organs. This view of Montesquieu is again reiterated in the United States of America in the Massachusetts Declaration of Rights, 1780, which states that the Legislature, Executive and Judiciary may never, in any case whatsoever exercise the powers bestowed upon the other two organs of governance, “To the end, it may be a Government of laws and not of man.”
When we talk about the concept of separation of powers in the Indian context, it is agreed that it forms a part of the basic features of the Indian Constitution. It is further agreed that the three organs of governance in India consisting of the Judiciary, which consists of the Supreme Court, High Courts and all lower courts, the Executive, which is made up of the President, and the Legislature, consisting of the Parliament and the State Legislatures, are all bound by the Constitution of India and are subject to its provisions. This separation of powers was also noted in subsequent cases, in the case, Kartar Singh V. State of Punjab, Justice K. Ramaswamy reiterated that it is the job of the Legislature to make the laws, the Executive to implement them and the Judiciary to interpret them within the limits that have been stated in the Constitution. Chief Justice Subba Rao further reiterated this in Golak Nath V State of Punjab, where he talked about the three organs not “overstepping their limits.”
Usually, when we talk about one of the organs of the state infringing upon the territory of another, we look at cases of the Legislature or Parliament crossing over to the turf of the Judiciary and infringing upon the functioning of the courts, etc, as was seen in the fourth judges case when the supreme court struck down the setting up of the National Judicial Appointments Commission (NJAC), a body aimed at bringing more transparency to the appointment of judges to the supreme court and high courts and it sought to replace the collegium system which was widely considered to be opaque in nature, because setting up of this body would affect the independence of Judiciary and this was an instance of the Parliament trying to assert power over the Judiciary which went against the principles of separation of powers. But here we look to take a slightly different approach and look at the Judiciary breaking the rules of separation of powers and crossing over into the realm of the other organs, thereby acting outside its scope as provided by the Constitution. This infringement by the Judiciary can be most prominently seen in the form of judicial activism.
Judicial Activism is described in the Black’s Law Dictionary as a judicial decision making philosophy wherein the personal views of the judges about public policy, etc, guide the decision-making process and they suggest that any adherents to the policy would be violative of the Constitution, and they are also prepared to ignore previous precedents on the matter.
There is a school of thought that believes that judicial activism should exist and promote the same. The main arguments that are given in favour of judicial activism state that the only reason judicial activism ever arose were due to the failure of the Executive in performing its functions, which forced the Judiciary to fill out the same. The Judiciary was forced into filling out these functions since whenever there are cases that involve the violation of human rights and the Executive is not able to provide justice, the courts must step in to prevent this miscarriage of justice. Hence, even though it is the function of the Executive to implement the laws to ensure good governance in the society, in situations where they fail to carry out this function, we must have the judiciary step in and take corrective action else we could see the whole administrative system collapse. The Judiciary is also considered to be an agent of social change, and unless the Judiciary contributes to this social change they will not be able to attain legitimacy, it is also to fulfil this function of social change that Public Interest Litigations (PIL) were introduced so that the downtrodden members of society who have been denied access to justice for so long finally get what they are entitled to as promised under the Constitution.
There is a counter to this school of thought, the Judiciary suffers from some inherent limitations, for example, when we look at the judges of the courts, they are appointed by an independent collegium, as opposed to the members of the Legislature who have been selected by the mandate of the people of the country and represent their aspirations and ambitions more clearly. The notions that are put forth by these judges will obviously be influenced by their own personal teachings and in the way that they have been brought up, hence these aforementioned notions may not in all cases be reflective of the mass opinion held by the people of the country and may even have some vested interest in the judge behind them, this popular opinion of the people is something that can only be put forth by the representatives of the people, i.e., the democratically elected representatives, and repetitively interfering in the functioning of the Parliament can cause the public to lose faith in its own governmental institution.
When we look at the Indian case, Public Interest Litigations had indeed come about with the intention that justice should be accessible to all members of society and not just to the wealthy and affluent. And there is plenty of evidence to suggest that it has indeed made access to justice much easier, but it is also important to look at the flipside of it. Over time, this social justice element of PIL has been severely diluted, what was initially brought about to give even the poorest and most downtrodden access to justice has now become a form of litigation used by the courts to perform functions that are not theirs to perform, this includes the complicated task of interlinking of rivers in India, or the distribution of food grains to the below poverty line members of society, something that should be carried out by the government since they have the required expertise and competence for the same. Apart from this, we have seen the courts carry out other administrative functions such as restricting access to the core areas of tiger reserves to tourists, order control over emissions given out by automobiles, regulation of blood banks, and order military operations in Kashmir in the year 1993. These are functions that should be carried out by the government of the day elected through the mandate of the people; the Judiciary should not be making such important policy decisions.
Apart from this, the most famous example of the Judiciary stepping out of its own turf would be the interpretation carried out by the supreme court to take away the power of appointment of judges from the president and the Executive and appropriate the entire power into the collegium consisting of the CJI and four senior-most judges through the famous Three Judges Case, even though there is not a single constitution in the world that gives the power to appoint the judges to the judges themselves.
In all these cases we can see that for all the holier-than-thou attitude adopted by the court with regards to their own territory being breached by other organs of the government, they do not seem to have fared any better, they have at many points had total disregard for separation of powers justifying it as something they have to do due to the failure of the other branches of government, but if the same logic is used by the other branches to hold the Judiciary accountable, they are the first to cry out over independence of Judiciary. While it is essential that the Judiciary does help in keeping the Legislature and Executive in check, it is also important that the Judiciary does not overstep its mark, it is always important to remember that we live in a democracy, and in our democracy, it is the Legislature that is chosen by the people, not the Judiciary, we cannot have a country that is brought under the reign of the unelected. And while the courts are indeed the protectors of the Constitution, it is imperative that they do not turn into the very thing they swore to protect us from.
Fairlie, John A. “The Separation of Powers.” Michigan Law Review 21, no. 4 (1923): 393-436. Accessed August 16, 2020.
1994 SCC (3) 569
1967 AIR 1643
Henry C. Black, Black Law Dictionary (4th ed, 1968).
Anand, A.S. “JUDICIAL REVIEW – JUDICIAL ACTIVISM – NEED FOR CAUTION.” Journal of the Indian Law Institute 42, no. 2/4 (2000): 149-59. Accessed August 17, 2020.
AIR 1999 SC 1
(Author: Ashwin Pandey)