A Firm with excellence



The doctrine of separation of powers implies that each pillar of democracy - the executive, legislature and the judiciary - perform separate functions and act as separate entities. The executive is vested with the power to make policy decisions and implement laws. The legislature is empowered to issue enactments. The judiciary is responsible for adjudicating disputes. The doctrine is a part of the basic structure of the Indian Constitution[1] even though it is not specifically mentioned in its text. Thus, no law may be passed and no amendment may be made to the Constitution deviating from the doctrine. Different agencies impose checks and balances upon each other but may not transgress upon each other’s functions. Thus, the judiciary exercises judicial review over executive and legislative action, and the legislature reviews the functioning of the executive. There have been some cases where the courts have issued laws and policy related orders through their judgments. These include the Vishakha case where guidelines on sexual harassment were issued by the Supreme Court, the order of the Court directing the Centre to distribute food grains (2010) and the appointment of the Special Investigation Team to replace the High Level Committee established by the Centre for investigating black money deposits in Swiss Banks. In 1983 when Justice Bhagwati introduced public interest litigation in India, Justice Pathak in the same judgment warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”.[2] Justice Katju in 2007 noted that, “Courts cannot create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles.

With a view to see that judicial activism does not become judicial adventurism the courts must act with caution and proper restraint. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.”[3] While there has been some discussion on the issue of activism by the judiciary, it must be noted that there are also instances of the legislature using its law making powers to reverse the outcome of some judgments. (M.J. Antony has referred to a few in his article in the Business Standard) We discuss below some recent instances of the legislature overturning judicial pronouncements by passing laws with retrospective effect. On September 7, 2011 the Parliament passed the Customs Amendment and Validation Bill, 2011 which retrospectively validates all duties imposed and actions taken by certain customs officials who were not authorized under the Customs Act to do the stated acts. Some of the duties imposed were in fact challenged before the Supreme Court in Commissioner of Customs vs Sayed Ali in 2011.[4] The Supreme Court struck down the levy of duties since these were imposed by unauthorised officials. By passing the Customs Bill, 2011 the Parliament circumvented the judgment and amended the Act to authorize certain officials to levy duties retrospectively, even those that had been held to be illegal by the SC. Another instance of the legislature overriding the decision of the Supreme Court was seen in the Essential Commodities (Amendment) Ordinance, 2009 which was passed into an Act. The Supreme Court had ruled that the price at which the Centre shall buy sugar from the mill shall include the statutory minimum price (SMP) and an additional amount of profits that the mills share with farmers.[5] The Amendment allowed the Centre to pay a fair and remunerative price (FRP) instead of the SMP. It also did away with the requirement to pay the additional amount. The amendment applied to all transactions for purchase of sugar by the Centre since 1974. In effect, the amendment overruled the Court decision. The executive tried to sidestep the Apex Court decision through the Enemy Property (Amendment and Validation) Ordinance, 2010. The Court had issued a writ to the Custodian of Enemy Property to return possession of certain properties to the legal heir of the owner. Subsequently the Executive issued an Ordinance under which all properties that were divested from the Custodian in favour of legal heirs by a Court order were reverted to him. The Ordinance lapsed and a Bill was introduced in the Parliament. The Bill is currently being examined by the Parliamentary Standing Committee on Home Affairs. These examples highlight some instances where the legislature has acted to reverse judicial pronouncements. The judiciary has also acted in several instances in the grey areas separating its role from that of the executive and the legislature. The doctrine of separation of powers is not codified in the Indian constitution. Indeed, it may be difficult to draw a strict line demarcating the separation. However, it may be necessary for each pillar of the State to evolve a healthy convention that respects the domain of the others.

Judicial control over administration

The control exercised by the Courts over the administration is called judicial control, that is, to the power of the court to keep the administrative acts within the limits of law. It also implies the right of an aggrieved citizen to challenge the wrongful act of administration in the court of law. The primary purpose of judicial control over administration is the protection of the rights and liberty of citizens by ensuring the legality of administrative acts. L D white has aptly pointed out that, “the purpose of legislative supervision is principally to control the policy and expenditure of the executive branch, the end sought by judicial control of administrative acts is to ensure their legality and thus, protect citizen against unlawful trespass on their constitutional and other rights. Lord Bryce has said that there is no better test of the excellence of a government than the efficiency and independence of its judicial system.

In India, the judiciary occupies an important place. The constitution visualizes an independent judiciary to safeguard the rights of citizens. In a democratic polity, the independent judiciary is a sine qua non to the effective functioning of the system. Administration has to function according to the law and the Constitution. The judiciary has an important role to play in protecting the citizen against the arbitrary exercise of power by administration.

Basis of Judicial Control: Rule of Law

The term ‘rule of law’ is originated from England and India has taken this concept. The concept of rule of law further requires that no person should be subjected to harsh or arbitrary treatment. The word ‘law’ in rule of law means that whether he is a man or a society, he must not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian Constitution rule of law means law of land. In 1885, Professor A.V Dicey developed this concept and propounded three principles or postulates of the rule of law in his classic book, Introduction to the Study of the Law of the Constitution.

1. Absence of Arbitrary Power: No man is punishable or can be lawfully made to suffer in body or in goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. Dicey went on and stated that no one should have too wide and arbitrary or discretionary powers.

2. Equality before law: According to the second principle of Dicey, equality before law and equal subjection of all classes to the ordinary law of land to be administered by the ordinary law courts and this principle emphasizes everyone which included government as well irrespective of their position or rank. But such element is going through the phase of criticisms and is misguided. As stated by Dicey, there must be equality before law or equal subjection of all classes to the ordinary law of land. He also criticized French legal system of Droit Administration as there were separate tribunals for deciding the cases of state officials and citizens.

3. Predominance of Legal Spirit: According to the third principle of Dicey, It is generally presumed that the written constitution is the source of legal liberties of citizens. However, it is not true as Britain has an “unwritten Constitution.” Legal spirit is the real source of law in England. The legal spirit is seen in its customs, conventions and judicial decisions. Dicey opines that the individual rights and liberties are more safely protected in Britain than France. Rule of law as established by Dicey requires that every action of the administration must have legal backing and done in accordance with law.

Grounds of Judicial Intervention

In order to develop Indian democracy, rule of law has played a great role. At the time of framing of Constitution, the framers had two options i.e. USA and England. Some of the provisions were adopted from USA and some of them were adopted from England. Our constitutional fathers have adopted rule of law from England and many provisions were incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and no one is above Indian Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined in Part III of the Indian Constitution. Generally judicial intervention in administrative activities is confined to the following cases:

a) Lack of Jurisdiction: If any public official or administrative agency acts without or beyond his/her or its authority or jurisdiction the courts can declare such acts as ultra vires. For instance, according to administrative rules and procedures, in all organizations, the competent authority is identified for taking decisions and actions. If any authority or person other than the competent authority takes action, the court's intervention can be sought under the provisions of lack of jurisdiction.

b) Error of Law: This category of cases arises when the official misconstrues the law and imposes upon the citizen obligations, which are absent in law. This is called misfeasance in legal terminology. The courts are empowered to set right such cases.

c) Error of Fact: this category of cases is a result of error in discovering cases and actions taken on basis of wrong assumptions. Any citizen adversely affected by error of judgment of public official can approach courts for redressal.

d) Error of Procedure: "due procedure" is the basis of governmental action in a democracy. Responsible government means a government by procedure. Procedure in administration ensures accountability, openness and justice. Public officials must act in accordance with the procedure laid down by law in the performance of the administrative activities. If the prescribed procedure is not followed the intervention of the courts can be sought and legality of administrative actions can be questioned.

e) Abuse of authority: if a public official exercises his/her authority vindictively to harm a person or use authority for personal gain, court's intervention can be sought. In legal terms, it is called malfeasance. The courts can intervene to correct the malfeasance of administrative acts.

Means of Judicial Control Over Administration

The forms and methods of judicial control over administration vary from country to country, depending upon the type of the constitution and the system of law. Broadly speaking, there are two systems of legal remedies against administrative encroachments on the rights of citizens. One is called the Rule of Law system and the other is called the Administrative Law system. The Rule of Law means that everybody, irrespective of social and cultural differences, whether an official or a private citizen is subject to the same law and the ordinary law of the land. The official cannot take shelter behind state sovereignty in committing mistakes in his official capacity. A.V. Dicey, the main exponent d Law system stated that the Rule of Law assumes equality of Rule of all before law and application of the same law to all. The rule of law system prevails in England and other Commonwealth countries including India. It is also prevalent in the USA and many other democratic counties. The administrative law system is based on the assumption of separate law and courts for dealing with administrative actions. This system prevails mainly in France. In the following paragraphs, we shall discuss some of the forms of judicial control over administration in India, under the Rule of Law system.

Judicial Review: The judicial review implies the power of the courts to examine the legality and constitutionality of administrative acts of officials and also the executive orders and the legislative enactments. This is very important method of judicial control. This doctrine prevails in countries where Constitution is held supreme, for example, in U.S.A. India, Australia, etc.

Statutory Appeal: The statutes made by Parliament and State Assemblies itself provide that in a particular type of administrative action, the aggrieved party will have a right of appeal to the courts Judicial Administration or to a higher administrative tribunal. Sometimes, legislative enactment itself may provide for judicial intervention in certain matters.

Suits against the Government: There are several limitations, varying from country to country, as regards filing suits against the government for its contractual liability. The contractual liability of the Union and the State Governments is the same as that of an individual citizen under the ordinary law of contracts, subject however, to any statutory conditions of limits, which the Parliament can regulate under the constitution. The State is liable for the tortuous acts of its officials in respect of the non-sovereign functions only. In Britain, under the Crown Proceedings Act of 1947, the State is liable for torts (wrongs) committed by its servants i.e., public officials, subject to some exceptions.

Criminal and Civil Suits against Public Officials The position regarding the public officials' personal liability in respect of acts done by them in their official capacity varies form country to country. In India, civil proceedings can be instituted against a public official for anything done in his official capacity after giving two months notice. When criminal proceedings are to be instituted against an official for the acts done in his official capacity, previous sanctions of the Head of the State i.e., the President or the Governor is required. Some functionaries like the President and the Governor are immune from legal proceedings even in respect of their personal act. Ministers, however, do not enjoy such immunity. The Monarch in Britain and President in the U.S.A. are also immune from legal liability.

Extraordinary Remedies: Apart from the methods of judicial control already discussed, there are the extraordinary remedies in the nature of writs of Habeas Corpus, Mandamus., Prohibition, Certiorari and Quo Warranto. These are called extraordinary remedies because the courts grant these writs except the writ of Habeas Corpus, in their discretion and as a matter of right and that too when no other adequate remedy is available. A writ is an order of the court enforcing compliance on the part of those against whom the writ is issued. In India, these writs are available under the provisions of the Constitution. While the Supreme Court is empowered to issue these writs or orders or directives only for the enforcement of Fundamental Rights, the High Courts are empowered to issue these writs not only for the enforcement of Fundamental Rights but also for other rights. in Britain, these are called Prerogative Writs issued in the name of the King as ‘the fountain of justice’. In the U.S.A. these are provided for partly by common law and partly by statute. The writ of injunction is not specifically provided in the Constitution. However, it is issued by the Indian courts. We will discuss these writs now:

a) Habeas Corpus: Habeas Corpus literally means to have the body of. This writ is an order issued by the court against a person who has detained another to produce the latter before the court and submit to its orders. If it is found that the person in unlawfully or illegally detained, he will be set free. A friend or a relation of the detained person may also apply for this writ on his/her behalf. This writ is a great bulwark of individual freedom and can be described as the cornerstone of personal liberty. This writ is granted as a matter of a right of prima facie, if it is established that the person is unlawfully detained. Its utility is, however restricted in India in view of the provision of Preventive Detention Act.

b) Mandamus: Mandamus literally means command. If a public official fails to perform an act which is a part of his public duty and thereby violates the right of an individual, he /she will be commanded to perform the act through this writ. From the standpoint of judicial control over administrative lapses, it is an effective writ. In India, this can also be issued to compel a court or judicial tribunal to exercise its jurisdiction.

c) Prohibition: It is a judicial writ issued by a superior court to an inferior court, preventing it from usurping jurisdiction, which is not vested with it. While Mandamus commands activity, Prohibition commands inactivity. This writ can be issued only against judicial or quasi-judicial authorities to prevent exercise of excess of jurisdiction by a subordinate court. As such its significance as a method of judicial control over administration is limited.

d) Certiorari: While Prohibition is preventive, Certiorari is both preventive and curative. It is a writ issued by a superior court for transferring the records of proceedings of a case from an inferior court or quasi-judicial authority to the superior court for determining the legality of the proceedings.

e) Quo Warranto: Literally, Quo Warranto means 'on what authority'. When any person acts in a ‘public office’ in which he/she is not entitled to act, the court by the issue of this writ, will enquire into the legality of the claim of the person to that office. If the said claim is not well founded, he/she will be ousted from that office. It is, thus, a powerful instrument against the usurpation of ‘public offices’.

Besides these, there is one more writ, namely the writ of Injunction. It is of two kinds, mandatory and preventive. Mandatory injunction resembles the writ of Mandamus while Preventive Injunction resembles the writ of Prohibition. Through this writ, a public official can be restrained from doing a thing which, if done would cause irreparable damage to the rights of individuals. While Prohibition is a writ available against judicial authorities, Injunction is a writ, which is issued against executive officials.

Limitations Of Judicial Control Over Administration

The effectiveness of judicial control over administration is limited by many factors. One of the most important factor is that the courts cannot interfere in the administrative activities on their own accord even if such activities are arbitrary. They act only when their intervention is sought. Judicial intervention is restrictive in nature and limited in its scope. Some of these limitations are:

a) Unmanageable volume of work: the judiciary is not able to cope up with the volume of work. In a year the courts are able to deal with only a fraction of cases brought before it. Thousands of cases have been pending in Supreme Court, High Courts and Lower Courts for years together for want of time. There is an increase in the cases of litigation without a commensurate expansion of judicial mechanism. The old adage of 'justice delayed is justice denied', still holds good. This excessive delay in the delivery of justice discourages many to approach the court. The feeling of helplessness results in denial of justice to many.

b) Post-mortem nature of judicial control: In most of the cases the judicial intervention comes only after enough damage is done by the administrative actions. Even if the courts set right the wrong done, there is no mechanism to redress the trouble the citizen has undergone in the process.

c) Prohibitive Costs: the judicial process is costly and only rich can afford it. There is some truth in the criticism of pro-rich bias of judicial system in India. As a result, only rich are able to seek the protection of courts from the administrative abuses. The poor are, in most cases, the helpless victims of the administrative arbitrariness and judicial inaction. As V.R. Krishna Iyer pointed 'the portals of justice are not accessible to the poor'.

d) Cumbersome procedure: Many legal procedures are beyond the comprehension of common man. The procedural tyranny frightens many from approaching the courts. Even though the procedures have a positive dimension of ensuring fair play, too much of it negatives the whole process.

e) Statutory limitations: the courts may be statutorily prevented from exercising jurisdiction in certain spheres. There are several administrative acts, which cannot be reviewed by courts. For instance, ninth schedule of Indian constitution.

f) Specialised nature of administrative actions: The highly technical nature of some administrative actions act as a further limitation on judicial control. The judges, who are only legal experts, may not be able to sufficiently appreciate the technical implications of administrative actions. As a result, their judgments may not be authentic.

g) Lack of awareness: In developing societies, most of the people who are poor and illiterate are not aware of judicial remedies and the role of the courts. As a result they may not even approach the court to redress their grievances. The courts, which can intervene only when it is sought, may be helpless in this situation. The general deprivation of people also results in deprivation of justice to them.

h) Erosion of autonomy of judiciary: There is executive interference in the working of judiciary. The quality of judiciary mostly depends on the quality of the judges. The Law Commission made many recommendations to ensure the judicial standards of the bench. The suggestion to create Judicial Commission with responsibility for judicial appointments deserves serious consideration. In recent years, there are many allegations of corruption against judges. This undermines the prestige and the effectiveness of the judiciary.

Many steps have been initiated to overcome some of the limitations mentioned above. In the succeeding paragraphs, we shall discuss some of these measures, in particular, Public Interest Litigation, Legal Aid and Nyaya Panchayats.

Principle of Separation of Powers and Concentration of Authority

The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judiciary. The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government into three categories viz., deliberative, magisterial and judicial Locks categorized the powers of the Government into three parts namely: continuous executive power, discontinuous legislative power and federative power. “Continuous executive power” implies the executive and the judicial power, “discontinuous legislative power” implies the rule making power, “federative power” signifies the power regulating the foreign affairs.[6] The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of separation of powers. That’s why he is known as modern exponent of this theory. Montesquieu’s doctrine, in essence, signifies the fact that one person or body of persons should not exercise all the three powers of the Government viz. legislative, executive and judiciary. In other words each organ should restrict itself to its own sphere and restrain from transgressing the province of the other.

In the view of Montesquieu:

When the legislative and executive powers are united in the same person, or in the same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers...”[7]

Montesquieu’s “Separation” took the form, not of impassable barriers and unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as “checks and balances”. The three organs much act in concert, not that their respective functions should not ever touch one another. If this limitation is respected and preserved, “it is impossible for that situation to arise which Locke and Montesquieu regarded as the eclipse of liberty the monopoly, or disproportionate accumulation of power in one sphere.”[8]

The man behind the principles is to protect the people again capricious tyrannical and whimsical powers of the State.

The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the function of another.

In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert by amendment a new Article 40-A concerned with doctrine of separation of powers. This Article reads:

“There shall be complete separation of powers as between the principal organs of the State, viz. the legislative, the executive, and the judicial.”[9]

Kazi Syed Karimuddin (a member of Constituent Assembly) was entirely in agreement with the amendment of Prof. K.T. Shah.

Shri K. Hanumanthiya, a member of Constituent Assembly dissented with the proposal of Prof. K.T. Shah. He stated that Drafting Committee has given approval to Parliamentary system of Government suitable to this country and Prof. Shah sponsors in his amendment the Presidential Executive. He further commented:

“Instead of having a conflicting trinity it is better to have a harmonious governmental structure. If we completely separate the executive, judiciary and the legislature conflicts are bound to arise between these three departments of Government. In any country or in any government, conflicts are suicidal to the peace and progress of the country..... Therefore in a governmental structure it is necessary to have what is called “harmony” and not this three-fold conflict.”[10]

Prof. Shibban Lal Saksena also agreed with the view of Shri K. Hanumanthaiya.

Dr. B.R. Ambedkar, one of the important architects of Indian Constitution, disagreeing with the argument of Prof. K.T. Shah, advocated thus:

“There is no dispute whatsoever that the executive should be separated from the judiciary. With regard to the separation of the executive from the legislature, it is true that such a separation does exist in the Constitution of United States; but many Americans themselves were quite dissatisfied with the rigid separation embodied in the American Constitution between the executive and legislature.........There is not slightest doubt in my mind and in the minds of many students of Political Science, that the work of Parliament is so complicated, so vast that unless and until the members of the Legislature receive direct guidance and initiative from the members of the Executive, sitting in Parliament, it would be very difficult for Members of Parliament to carry on the work of the Legislature. I personally therefore, do not think that there is any very great loss that is likely to occur if we do not adopt the American method of separating the Executive from the Legislature.”[11]

With the aforesaid observations the motion to insert a new Article 40-A dealing with the separation of powers was negatived i.e. turned down. In Indian Constitution there is express provision that “Executive power of the Union shall be vested in the President,[12] and the executive power of the State shall be vested in Governor..” (Article 154(1) of Indian Constitution). But there is no express provision that legislative and judicial powers shall be vested in any person or organ.

Now we have to see what is the real position in India regarding the separation of powers?

President being the executive head is also empowered to exercise legislative powers. In his legislative capacity he may promulgate Ordinances in order to meet the situation as Article 123(1) says “If at any time, except when both Houses of Parliament are in Session, President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require”.

When Proclamation of emergency has been declared by the President due to failure of Constitutional machinery the President has been given legislative power under Article 357 of our Constitution to make any Law in order to meet the situations. A power has also been conferred on the President of India under Article 372 and 372-A to adapt any Law in country by making such adaptations and modifications, whether by way of repeal or amendment as may be necessary or expedient for the purpose or bringing the provisions of such Law into accord with the provisions of the Constitution.

The President of India also exercises judicial function. Article 103(1) of the Constitution is notable in this connection. According to this Article “If any question arises as to whether a member or either of House of Parliament has become subject to disqualification mentioned in clause (1) of Article 102, the questions hall be referred for the decision of the President and his decision shall be final”. Article 50 lays emphasis to separate judiciary from executive. But in practice we find that the executive also exercises the powers of judiciary as in appointment of judges. (Articles 124, 126 & Article 127). The legislative (either House of Parliament) also exercises Judicial function in removal of President (Article 56) in the prescribed manner.[13] Judiciary also exercises legislative power; High Court and Supreme Court are empowered to make certain rules legislative in character. Whenever High Court or the Supreme Court finds a certain provision of law against the Constitution or public policy it declares the same null and void, and then amendments may be incorporated in the Legal System. Some time High Court and Supreme Court formulate the principles on the point where law is silent. This power is also legislative in character.

Judicial Accountability and Separation of Power

Judiciary Unlimited - an unelected judiciary which is not accountable to anyone except its own temperament has taken over significant powers of Indian Governance. Conflict between the judiciary, legislature and the executive has been extant since 1950 and attempts of drawing the line have been dropped including the Judges (Inquiry) Bill, 2006. The courts have gone well beyond ensuring that laws are implemented. Now, the Supreme Court has invented its own laws and methods of implementation, gained control of bureaucracy and threatened officers with contempt of court if its instructions are not complied with. The question is not whether some good has come out of all this. The issue is whether the courts have arrogated vast and uncontrolled powers to themselves which undermine both Democracy and Rule of Law, including the powers exercised under the Doctrine of Separation of powers.

Our constitution is a very well-built document. It assigns different roles to all the three wings of governance- the legislature, executive and the judiciary. There is no ambiguity about each wing's powers, privileges and duties. Parliament has to enact law, Executive has to enforce them and the judiciary has to interpret them. There is supposed to be no overlapping or overstepping. The Judiciary versus the Executive or legislature is a battle which is not new but in recent times, the confrontation is unprecedented with both the sides taking the demarcation of powers to a flash-point. The first Salvo was fired by the Lok Sabha Speaker, Som Nath Chatterjee who accused the Judiciary for interfering in the legislative matters and stated publicly that ‘everyone has to remain within the Laxman Rekha of the Constitution’. A conflict nevertheless arises in practical application of statutes that can sometimes be overstepping. Who is then to decide? Who has been entrusted with the responsibility of conflict resolution in such cases? Ultimately it is the judiciary to decide whether there has been a trespass in each other's territories. And while taking such decisions the judiciary should keep within the tenet of the Constitution.

Under Article 121 of the Constitution, the conduct of a judge cannot be debated in the Parliament. There is a separate procedure for impeachment; this is with the intention to secure the independence of the judiciary. Similarly, under Article 122, the proceedings of the parliament cannot be questioned by the judiciary- even if a point of order is found contrary to the statue. This is indirectly envisaging the supremacy of the legislature in making laws, based on reasonable policies that cannot be questioned.

Nehru was engaged at the Supreme Court over agrarian legislations, whereas Mrs. Gandhi wanted a 'committed' judiciary (1969-75). The Judiciary has failed the nation during the time of Emergency (1975-77) but invented public interest litigation (hereinafter referred to as PIL) to project a new image of itself. Has the Supreme Court gone too far? PIL started with a limited focus but has expanded into whatever areas the court wishes to engage. This tool of Judicial review was also used to implement promote Judicial Activism, but without any Judicial accountability. It was after the First amendment that the tussle of limits on the power of these wings started. This resulted in the judiciary creating a Constitutional dustbin for all the unconstitutional actions. This tussle resulted in landmark judgments of Indira Gandhi, Golaknath, and Kesavananda Bharti and also laid down the basic structure doctrine. Where, Separation of Powers was also made the basic structure of the constitution.

Therefore, an argument based in the extracts from the constitution indicating the supremacy of one wing is completely absurd and misses the high ideals of democracy envisaged by the framers of the constitution.

India is a democracy and it has to be and should be governed by elected representatives and not merely judges, amicus curiae or committees and commissions that is accountable to the Supreme Court. The bottom line remains that the judiciary should go after established wrongs, instead of going after their enforcement. The Conflict of the wings unless resolved, would result in repercussions for governance. It's time for Judge's (Inquiry) Bill, 2009.

Separation of Powers

In the context of Separation of Power, judicial review is crucial and important. We have three wings of the state- Judiciary, Legislature and Executive (not necessarily in that order) with their function clearly chalked out in our constitution. Article 13 of the constitution mandates that the 'State shall make no law, which violates, abridges or takes away rights conferred under Part III'. This implies that both the Legislature and the Judiciary in the spirit of the words can make a Law. But under the theory of checks and balances, the judiciary is also vested with the power to keep a check on the laws made by the legislature. Hence, the introduction of Judicial Review.

But where is the judicial accountability of a judicial review. The Judge is accountable to no one, not even to another judge, the question of legislature and executive does not arise. There is supremacy of the constitution that prevails, but the limit of such supremacy has too been left to a judge to decide.

The issue is whether any amendment or any ordinary law is put beyond the scrutiny of judicial review? Frictions between the wings of the state are indeed not new. Every department justifies its actions 'as per the provisions of the constitution'. But, finally, it is the judiciary that has a firm foot in interpreting the constitution, and this was reiterated by nine judge bench.[14]

The Rule of law pre-supposes that the state is constituted in these three distinct organs. One of the important facets of the Doctrine of Separation of Power is the independence of the judiciary which gives teeth to the maintenance of rule of law. Alexander Hamilton in Federalist 78 remarks[15] on the importance of the independence of the judiciary to preserve the separation of power in the following words:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited constitution, I understand one which contains certain specified exception to the legislative authority; such for instance that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than the courts of justice, whose duty must be to declare all acts contrary to the manifestation tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Montesquieu finds that tyranny pervades when there is no separation of powers

There would be an end of everything, where the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting the laws, that of executing the public resolution and typing the causes of individuals.

The Supreme Court of India has held the Separation of Power as the basic Structure of the Constitution.[16] And even before the doctrine of Basic Structure was propounded, the importance of Separation of Power was illustrated by the Supreme Court in the Re-Special Reference No. 1 of 1964[17] (Legislative Privilege Case).

Instances of the Conflict of the Wings

The first wave of judicial intervention in legislative matters came in the mid-1990's when the four important decisions of the constitution overturned the then existing balance of Power. Various high courts reinterpreted Article 356 so that the blanket powers of the governors to dismiss state governments were curtailed, the power to punish for contempt of court under Article 142 was expanded beyond court rooms and 'inherent powers' of the SC was used to cover a wider range of subjects. But the most important change came in the process of appointment of judges under Article 124 and 217 in 1994. Executive's exclusive right was diluted now the SC's collegiums- consisting of the Chief Justice of India and four senior most judges. The executive may stall the appointments of those it doesn't want but want but cannot foist those it wants on the benches.

This follows attempts by late Prime Minister Indira Gandhi to pack the benches with her acolytes that led to infinite pressure on the judiciary. The Executive had to withdraw from transferring of Judges. All this may have imparted a sense of security and immunity to the judiciary from political interference but also left the politicians insecure. Predictably, politicians have bristled at the directions to the administration as they see this as encroachment on their turf.

SC on Reservations in Private Institutions

The SC's stance on the reservation of the OBC's in Private Institutions ignites the confrontation with the Legislature, a confrontation that is assuming grave dimensions. Very categorically on August 2005, the SC takes out private educational institutions out of the quota net. Five months later the parliament amends Article 16 to enable OBC quota, against which a PIL is filed. Later, the students call off strikes on the SC assurance. The Government then forms an oversight panel. Strangely and confidently the SC demands the bill from the legislature, as it wants to know the exact OBC population to decide the Quantum of Quota. Whose Job is the Hon' able SC doing? Not it's own. The Center has now dived the bill into two parts and reserved the one introducing reservations in private institutions, as it is the legislature's right in Public good.

PIL on the Constitutional Validity of Office of Profit Bill

It sparked in March 2006, when after Sonia Gandhi resigned and negotiations began to save the 12 left MP's and several others MLA's across the political spectrum. All this happened in the backdrop of Jaya Bachan's membership being terminated by the Election Commission citing court's precedents on office of profit. Finally in May-August 2006, the bill was passed to exempt the offices from the office of profit despite the objections from the president. The MP's believe that defining office of profit is the prerogative of the Parliament. But, the SC was ready to consider a PIL on the constitutional validity of such a bill, as any legislation has to conform to the letter and sprit of the constitution. Was the Judiciary wrong or right? This is left for the judiciary to decide. Is our state still under the control of a limited judiciary or have the other organs become subordinate to it? The Constitution gives the answer, in the name of 'Doctrine of Separation'.

SC on the Cash for Queries Scam

The Lok Sabha speaker when taunting the Judiciary to stay within the Laxman Rekha was referring to the judicial deliberations of 11 MP's in the Cash-for-Queries scam. The stake of the Judiciary was raised higher by refusing to entertain summons filed in the Supreme Court. On 11th September 2005, 11 MP's were caught on Camera accepting bribes and were expelled after all party meeting. The SC Suo Motu issued summons to the speaker for the reason behind expulsion. But the Speaker refused to answer the court summons on the process of expulsion being a purely legislative matter. Still later, when plea were filed by the MP's on House privilege of self-regulation and the SC admitted it without any hesitation and second thought. The tussle was that the SC believed that it was under a constitutional mandate to review this decision, whereas the legislature titled it as an 'unnecessary interference'. Is the judiciary really going beyond the spirit of the Constitution?

SC on the Power of Clemency with the Governor:

It was when the former Andhra Pradesh governor Sushil Kumar Shinde granted clemency to Gowru Venkata Reddy, a congress activist; it led to another landmark judgment by the apex court. The SC said the power to grant clemency is not absolute and has to be unbiased and the reasons have to be explained for the same. But, the governor said that he had exercised powers under Article 161 of the Constitution, which is not questionable. Also, Article 72(3) says, that: Nothing shall affect the power to suspend, remit or commute sentence of death exercisable by the Governor of a state under any law for the time being in force. The court was of the opinion that the any action under this Article is hit by Judicial Review, if it is against the basic structure of the Constitution. The court in order to protect one basic structure violated another, namely ‘Separation of Power’.

SC and the sealing drive in Delhi:

February 16th 2006: SC ordered sealing of over 50% commercial properties, the drive for which began in March. During that time the urban development ministry proposes mix-land use law and then six month moratorium. But, on 1st August 2006, this moratorium is declined. With this the Executive took charge and on May 30th 2006 the Delhi Special Provisions Act granted a one-year relief. Late in September that year, the sealing began as per the orders of the SC, which resulted in 3 deaths and was put off till January, next year. But, finally as the boss, the Centre amended the Master plan to allow changes in land use. We seem to have forgotten what the executive is and judiciary and what are there roles? All the three need a revision. The point in the drive in Delhi is an evidence of the failure of the governance, as the judiciary stepped into the shoes of the Executive.

The Delhi High Court literally opened the Pandora's Box when it ordered the municipal corporation to clean up its acts and started identifying the illegal buildings. The court even appointed observers and commissioners to oversee the demolitions. This resulted in the government acting in a hurried behavior and releasing new norms, which were again questioned by the apex court. MLA Harkrishan Singh Bali broke the seal of several establishments and asserted that the SC cannot appropriate the function of the Executive. It is the function of the executive to make master plans and execute them and the apex court should only adjudicate whether it is right or wrong? This is a clear case that will again fall prey to the order of the judiciary in the long term.

The Supreme Court and Public Interest Litigation

There needs to be a re-mentioning of the fact that a PIL under Article 32 of the Indian Constitution can only be filed if a question concerning the enforcement of a Fundamental Right is involved. The Supreme Court has expanded the version of PIL by including filing firstly by individuals, weak and oppressed group who are unable to vindicate their own rights; secondly by the court taking a cognizance suo motu; thirdly by public spirited individuals and in all these the court gone too far from its own laid down concept of 'Locus Standi'. The court has also given an edge to the public interest over fundamental rights. This reverses the basic assumption that it is the rights that are fundamental not the remedy. The Supreme Court has provided a balance between rights and Public Interest. The concept of PIL started with a limited focus but had expanded unlimitedly in whatsoever area the court wished to engage.

Instances of ‘Judiciary Unlimited’

The CNG decision of the Supreme Court may be applaud-able in its effect, but are these issues of the Legislature. The order clearly reflects transgress of the judiciary into the domain of the legislature with the use of PIL. But who is the judiciary accountable to for this intervention?

Under the implementation of the forest legislation, the court has appointed committees which have now become 'maharajas' of the forest throughout India. Their work is unpredictable and the effects devastating. Also, in forest cases, levies running into Crores have been imposed on a formula devised by the Court itself and entrusted to a fund created by it again. Surely, these are matters of no one but the Executive and Legislature respectively.

One might fail to understand why and how the lapses in the enforcement of planning laws in Delhi fall under the direct supervision of the Supreme Court. This is a clear case of trespass in the functioning area of the executive. The court has made attempts in implementing the unenforced laws, under the title of 'Judicial Review' knowingly that there is no accountability. Indeed to an extent the court can implement the plan of the parliament but by no means peremptorily bypass land use planning devised by the legislature for Delhi.

A few years ago, the court had also thrown out a large number of industries without the statutory law on the subject. And in a King Canute gesture, the court has commanded the cleaning up of the Yamuna and the Ganga. It has also prohibited habitations within 300 meters from Yamuna. This is the spark of the judicial dictatorship.

Both in 1999 and 2005, the Supreme Court seriously transgressed into the autonomy of the Jharkhand and the UP state legislatures by ordering them to follow certain procedures in internal affairs constitutionally entrusted exclusively to the legislature. Examples can be multiplied.

More recently, in 2006, in the Police case, the Supreme Court has created new extra-constitutional institutions who have virtually taken over the administration of the police especially in service and operational matters contrary to the existing laws, rules, regulations and orders. This has resulted in a situation of power without responsibility with the Supreme Court.

The result will be that there is no consistency in the approach because there are no set rules to be followed. Approach and Attitudes may vary from judge to judge. This leading to the democratic power flows from the Judiciary through the legislature and executive. Evidence is, that today, in some areas, bureaucrats in committees approved by the Supreme Court can bypass their own ministers because they report to the Supreme Court. So, we now have an Executive cum legislating Judiciary.

The unregulated judicial review

Introduction of Judicial Review and Amendments by Legislature

The first amendment introduced Article 31B in 1951 with a Ninth Schedule containing items 1 to 13. Pandit Nehru had assured the parliament while speaking on the First Amendment that there was no desire to add to the 13 items which were being incorporated in the Ninth Schedule and even this small list of 13 items was described by the Prime Minister as a long schedule.[18] This amendment was first challenged in Shankari Prasad v. Union of India[19] where the Supreme Court held that 1) it was not Ultra-vires or unconstitutional. 2) Article 13(2) does not affect amendments under Article 368 of the Constitution and 3) Article 31A and 31B do not make any changes in Article 226 or 136 so as to attract the provisions of Article 368. But, in view of Doubt expressed in the case, a bench of 11 judges was constituted in the case of Golaknath vs State of Rajasthan,[20] to reverse Shankari Prasad and to hold that Article 13(2) includes amendments made in the constitution. And an amendment affecting fundamental rights is covered by the proviso of Article 368. Finally, with the coming of this order the legislature from 27.2.1967 had no power to amend part III. Irrespective of this judgment the Parliament passed the Twenty fourth, Twenty fifth, Twenty Sixth and the Twenty Ninth Amendment Acts. The challenge to this was before a 13 judge bench in Kesavananda Baharti's case.[21] The court by majority overrules Golaknath and laid down that the Constitution does not enable the Legislature to amend the basic structure of the Constitution. Judicial Review and Indira Gandhi vs Raj Narain[22]

In June 1975 the elections of Mrs. Indira Gandhi were set aside by the Allahabad High Court on grounds of alleged corrupt practices, and an appeal against this order was pending. During the pendency of the appeal the 39th Amendment act was passed to ouster Judicial Review. A challenge to this in the Supreme Court resulted in striking down the addition of Clause 4 and 5 of Article 329A.

Judicial Review and Minerva Mills vs Union of India[23]

The legislature passed the 42nd Amendment to enlarge its role, by adding clause 4 and 5 of Article 386. This expansion of power was considered unconstitutional by the Judiciary and was thrown in the constitutional dustbin unanimously. In the words of N.A. Palkhivala the judgment of Minerva Mills can be best summarized as:

The limited amending power of the legislature was to preserve and protect the basis structure of the constitution. Since, the parliament has no right to alter any fundamental feature, it has no right so to amend Article 368 as to destroy that basic feature by abrogating the fundamental limitation on the amending power….and after all the supreme Court has laid down the law that parliament had no competence to alter the fundamental features, for the parliament to declare that it has the competence is not merely an act constitutional impertinence but an irrational exercise in futility.

Therefore, Prof. Granville Austin in his book ‘Working a Democratic Constitution’ (1999), has described the Ninth Schedule as:

The constitutional vault, into which legislations could be put, safeguarded, for judicial review, the judges being denied the key…

In re Delhi Law Act case[24] Hon’ble Chief Justice Kania observed:

“Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. It is then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making law is primarily cast on the legislature? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies executive or judicial are not intended to discharge legislative functions?” To the same effect another case is Rai Sahib Ram Jawaya vs State of Punjab[25] in which Hon’ble Chief Justice B.K. Mukherjee observed:

The judiciary is independent and separate wing of the Government. The executive or legislature has no concern with the day to day functioning of the judiciary. In terms of Biblical apologue, Francis Bacon in his “Essay of Judicature” showing the importance of “Temple of Justice” has expressed thus:

“Solomon’s Throne” was supported by lions on both sides; Let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty” as quoted in the case of S.C. Advocates-on-Record Association vs Union of India.[26]

Here the expression “Solomon‟s Throne” symbolizes the majesty of our justice system and the word „Lions‟ represents the Legislature and the Executive. Briefly it may be stated as” „Majesty of Justice system‟ is supported by the Legislature and the Executive from both sides, nevertheless, these Legislature and Executive are under the control of Judiciary. Legislature and Executive must not go against any point of Sovereignty. As regards “Sovereignty” it is enough to state that in a democracy it vests in the will of people.

Showing the importance of judiciary, Supreme Court in the same case has also observed: “Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged.” (p.338)

In Chandra Mohan v. State of U.P., AIR 1966 SC 1987 at p. 1993 Supreme Court held: “The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States....... But at the time the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive and that the agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the power levels would be a mockery.” (S.C. Advocates-on-Record Case, AIR 1994 S.C. 268 at p. 272).

The State in the present day has become the major litigant and the superior courts, particularly the Supreme Court, have become centres for turbulent controversies some of which with a flavour of political repercussions and the courts have to face tempest and storm because their vitality is a national imperative. In such circumstances, therefore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing its arbitrators. The answer would be in the negative. If such a process is allowed to continue, the independence of judiciary in the long run will sink without any trace. (S.C. Advocates-on-Record Case, AIR 1994 S.C. 268 at p. 344).

In Udai Ram Sharma vs Union of India,[27] Hon’ble Supreme Court held that “The American doctrine of well-defined separation of legislative and judicial powers has no application to India.”

In Hari Shankar Nagla vs State of M.P.[28] It was observed:

“The Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislature function consists in the determination of the choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.”

In Sita Ram vs State of U.P.,[29] Hon’ble Hegde J. expressed the current attitude of the Court regarding delegation of legislative power in following words:

“However much one might deplore the New Despotism of the executive, the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th century have become out of date. Present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it.”

In Asif Hameed vs State of Jammu and Kashmir[30] the Supreme Court observed:

“Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another.

The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs.”

The Government (State) cannot escape from its prime duty (i.e. rendering services for the welfare of the citizens) showing that is over-burdened with day to day functioning’s.

[1] Keshavananda Bharti vs. State of Kerala AIR 1973 SC 1461 [2] Bandhua Mukti Morcha AIR 1984 SC 802 [3] Aravali Golf Club vs. Chander Hass (2008) 1 SCC (L&S) 289 [4] Supreme Court in Commissioner of Customs vs. Sayed Ali (2011) 3 SCC 537 [5] Mahalakshmi Mills vs. Union of India (2009) 16 SCC 569 [6] I.P. Massey : Administrative Law, Edn. 1970, p. 35 [7] Montesquieu, De L’ Espirit des lois, 1748 quoted in Justice D.D. Basu: Administrative Law, Edn. 199, p. 23 [8] Carleton K. Alien: Law and Orders, Edn. 1965, p. 10,19 [9] Constituent Assembly Debates Book No.2, Vol. No. VII Second Print 1989, p. 959. [10] Ibid p. 962 [11] Ibid p. 967, 968 [12] Article 53(1) of Indian Constitution [13] Article 61 of the Indian Constitution [14] I. R. Coelho v. Union of India (2007) 2 SCC 1 [15] Quoted by the Hon’ble Supreme Court in I. R. Coelho v. Union of India (2007) 2 SCC 1 [16] Kesavananda Bharati Sripadgalvaru v. State of Kerala & Anr. (1973) 4 SCC 225 [17] (1965) 1 SCR 413 [18] Waman Rao v. Union of India (1981) 2 SCC 362 at 396 [19] (1950) 2 SCR 89 [20] (1965) 1 SCR 933 [21] Ibid [22] (1975) Suppl. SCC 1 [23] (1980) 3 SCC 625 [24] AIR 1951 S.C. 332 at p.346 = (1951)S.C.R. 747 [25] AIR 1955 S.C. 549 at p.556 [26] AIR 1994 SC 268 at p. 301 [27] AIR 1968 S.C. 1138 at p. 1152 [28] AIR 1954 SC 465 at p. 468 = (1955) SCR 380 [29] AIR 1972 S.C. 1168 at p. 1169 [30] AIR 1989 S.C. 1899

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