Indian Context: Separation of Powers and Judicial Activism
G. L. Batra, Writer & formerly Addl. Secretary, Indian Parliament and Chairman, Public Service Commission of the Indian State of Haryana
“Have we not lived enough to know that two men may honestly differ about a question, but both be right? In this paradox lies the secret of judicial process. There are areas where the judges must be activists and there are areas where they must be passivists. In which areas they should be activist, and in which areas they should be passivist, can be gathered from the knowledge we get by experience.” Abraham Lincoln
Our Constitution provides for a parliamentary form of government akin to that of the Westminster (British) model, which differs significantly from the American system. The framers of our Constitution envisaged three main organs of the State, viz. the Legislature, Executive and Judiciary. The Legislature consists at the Centre, of the President and two Houses to be known respectively as the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Parliament embodies the will of the people and in turn is answerable to the people. In the states, the Legislature comprises of the Governor, the Legislative Assemblies known as Vidhan Sabhas and in some states includes the Legislative Councils, (Vidhan Parishads). Apart from the legislative powers, the power over the purse also lies with the legislatures. No money can be drawn from the coffers of the State without the prior sanction of the Legislature. Financial control and executive accountability is the very essence of every parliamentary democracy. This is based on the fundamental principle “no taxation without peoples consent and no expenditure without people’s authority”. In the parliamentary form of government as we have in India, the will of the people is sovereign and the same is exercised through people’s representatives in Parliament and State Legislatures. It is the prerogative of the Legislature to legislative and of the executive to implement the laws thus made. The Executive is therefore answerable to the Legislature. The check that Parliament exercises over the executive stems from the basic principle that Parliament embodies the will of the people and it must therefore be able to supervise the way and the manner in which public policy laid down by it is carried out. However, in emergent situations, the Executive too has the power to legislate through the promulgation of ordinances, in pursuance to the provisions enshrined in Articles 123 and 213 of the Constitution.
The executive consists of the President and his council of ministers (Cabinet) headed by the Prime Minister at the Centre, and the Governor and his council of ministers headed by the Chief Minister in the States. The Cabinet is in fact a sub-committee of Parliament. In this system, the supremacy of the Legislature is of essence. The accountability of the executive to Parliament has thus been brought about by our Constitution by making the cabinet answerable to Parliament. The Prime Minister and his council of ministers have to be members of either house of Parliament. The President is the Constitutional head and holds a ceremonial position, and he is to act and exercise his powers solely on the aid and advice of the council of ministers. The advice of council of ministers is binding on the president. The council of ministers exercises all its functions in the name of the President. Parliament has the powers to remove the council of ministers if they lose the confidence of the House. Different devices for the removal of the Council of Ministers are provided in the Rules of Procedure governing the house the main such procedure being a vote of no confidence.
The Indian judiciary consists of the Supreme Court having its seat at Delhi, the High Courts of the respective states and the subordinate judiciary. The Supreme Court is a court of record and every Court in India is subordinate to it. It exercises its powers in its original jurisdiction as power to issue various kinds of writs and over disputes between the centre and states or amongst various states, vide Articles 32 and 131. All the judgments laid down by it are binding on the subordinate courts and the laws laid down by it are binding on citizens of India, and act as precedents for the lower judiciary and for itself. Even the ‘obiter dicta’ in the judgments of the Supreme Court, though not binding, have great persuasive value. The Supreme Court is the custodian of the fundamental rights enumerated in Part III of the Constitution. Its powers are so vast in the sphere of interpretation of the Constitution and other laws, and of judicial review that in the words of Krishna Iyer, J., “We (the Supreme Court) can fly upto the moon to follow injustice”.
Separation of Powers
Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity yet the Constitution makers have meticulously defined the functions of various organs of the state. The Supreme Court in Ram Jawaya Kapur v. State of Punjab, speaking through Mukherjea, C.J. has held that “the Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.” Thus, the Legislature, Executive and judiciary have to function within their own spheres demarcated under the Constitution and no organ can assume a function assigned to another. The framers of the Constitution have reposed ultimate trust in each organ to perform its functions as per the duties and powers conferred upon it by the Constitution.
The Constitution was framed by gentlemen and is meant for gentlemen. Dr. Rajendra Prasad, the Chairman of the Constituent Assembly said, “The welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that the country can have only the government it deserves……If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a life less thing. It acquires life because of the men who control and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them.”
The Constitution recognizes the principle of ‘the rule of law’, and the principle of supremacy of the written Constitution is the special feature of our polity. All the organs of the State are the creatures of the Constitution and draw their powers from it. The Constitution is supreme and no law can be enacted or made which is inconsistent with its provisions. Subject to the parameters of the powers conferred upon them by the Constitution, Parliament is supreme in its own sphere and the Supreme Court in its own sphere. The Constitution reposes trust in the judgment of each organ of the State to function and exercise their powers by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. The Legislature and Executive, the two facets of the people have all powers including that of finance. Judiciary has no power over sword or the purse. Nonetheless it has power to ensure that the aforesaid two main organs of the state function within the Constitutional limitations. The Judiciary is thus, the sentinel of democracy.
It is within the ambit of the powers of Parliament to amend the Constitution or to frame the laws but such amendments or laws will have to be consistent with the letter and spirit of the Constitution. An independent Judiciary, having the power of judicial review is one of the prominent features of the Constitution and it is an integral part of the basic edifice of our political system. Thus, while Parliament has the powers to frame laws, the Supreme Court has the power to interpret them, and if it finds that any amendment or law so made transgresses the boundaries of the Legislative powers of Parliament or is inconsistent with the provisions of the Constitution, the Supreme Court has a right to set it aside. The duty of the Court in such situations is sacrosanct. However, this duty too is to be exercised with great caution and restraint, and within the four corners of the Constitutional provisions, and the Supreme Court cannot legislate in the name of judicial review, or in the exercise of its writ jurisdiction, as this would amount to judicial overreach. It is a fundamental truth that making laws is the job of the Legislature, and in a Parliamentary Democracy, there can be no substitute for the Parliament.
The Supreme Court itself has emphasised the limitation on the power of judicial review in A. K. Gopalan v. State of Madras. The Court in that case held that there is considerable authority for the statement that the courts were not at liberty to declare an act void because in their opinion it was opposed to the spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms, or by necessary implication, the general power conferred upon the Legislature, the Court cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. The judgment explicitly lays down the principle that in our system of Government, the Judiciary cannot over-step its boundaries and encroach upon the field reserved to the Legislature or the Executive by the Constitution.
The Supreme Court in Asif Hamid v. State of J&K held that while exercise of powers by the legislature and executive is subject to judicial review, the only check on the Judiciary is its self imposed discipline of judicial restraint. The expanding horizon of judicial review has taken into its fold the concept of social and economic justice. Judicial activism makes legitimization of a claim in the beginning and not the end of political forces. The courts decisions have two uses as a rallying point for the aggrieved and as a strategic moral recognition that the claim should be honoured. To insist that the court go further than this is impracticable. The Supreme Court in Maneka Gandhi’s case while interpreting Article 21 has discovered the doctrine of ‘due process of law’. Further the major portion of the Constitution is liable to be amended by the Union Parliament by a special majority, if in any case if the judiciary proves too obtrusive. The theory underlying this Constitution can hardly be better expressed than in the words of Pandit Jawahar Lal Nehru “No Supreme Court no judiciary, can stand in judgment over the sovereign will of the parliament, representing the will of the entire community. It can pull up that sovereign will if it goes wrong but , in the ultimate analyses when the future of the community is concerned, no judiciary can come in the way…..Ultimately, the fact remains that the legislature must be supreme and must not be interfered with by the courts of law in such measures as social reforms.”
The Supreme Court in Municipal Corporation of Greater Bombay v. Indian Oil Corporation laid down that the language of a statutory provision is not a static vehicle of ideas and concept and as ideas and concept change, as they are bound to do in any country like ours with the establishment of democratic structure. It is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf but rather it is a powerful instrument fashioned by the society for the purpose of adjusting conflicts and tensions which are raised by reason of clash between conflicting interests. It is intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that a judge is called upon to perform a creative function. He has to inject flesh and blood into the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonize the law with the prevailing concepts and values and make it an effective instrument for delivering justice.
The need for judicial activism, or creative interpretation of laws by the judiciary arises when laws are not framed for purposes or situations which demand the immediate attention of the government or if such laws are framed, they are insufficient to meet the situation. If there are laws, they are not willfully implemented, either they are implemented partially deliberately in order to help a particular section of society whereby a particular section of society is benefited by it and a majority remains aggrieved. Many arbitrary orders in the process get passed by the government or other institutions of the State, and in many instances, these cannot be brought by aggrieved individuals to the notice of the court for lack of resources or lack of will to do so. It is in such a background that Bhagwati, C.J., evolved the concept of ‘public interest litigation’ by broadening the scope of the concept of locus standi. Though Bhagwati, J. is known as the father of Public Interest Litigation in India, the roots of judicial activism can be traced back to landmark judgments of the Supreme Court in Keshavananda Bharati v. Union of India and Municipal Council, Ratlam v. Vardhichand. Now, anyone can file a bona fide writ petition wherein the common interest of the society is involved. The court can, on finding it suitable, go into the matter and pass such orders as it deems fit. Through the medium of PIL, the Supreme Court has passed several landmark judgments in cases concerning bonded labour, environmental pollution, deforestation, etc. In the field of environmental PIL, the decisions of Kuldeeep Singh, J. on environmental protection, pollution and maintenance of greenbelt are great achievements and have left an indelible impact, as a result of which he has come to be called the ‘green judge’.
The need for judicial activism arises as and when there is a dissect between the government and the innocent citizen who have the right but could not enjoy it. The court has already broadly interpreted the phrase ‘Life and liberty’ under Article 21 in Maneka Gandhi’s case and has held that every Indian citizen has the right to live with dignity and the definition of the word right to live with dignity was correlated with the facilities or amenities to be provided by the State under the directive principles of the state policy. While the efforts of the court to protect the rights of the public, by judicial activism and through the medium of the Public Interest Litigation have been greatly appreciated, a debate has arisen over the Constitutional limits of the Judiciary’s powers of writ and review, and the apparent conflict which the exercise of those powers has brought about between the Judiciary on one hand, and the Legislature and Executive on the other. The recent judgments of the Supreme Court in the Jharkhand Assembly matter of 2005, and the writ petitions arising out of the expulsion by the Speaker of Lok Sabha MPs involved in the cash-for-questions scandal, have brought this issue into the limelight. Shri Somnath Chatterjee, the Hon’ble speaker of the Lok Sabha, delivering the Dr. K. N. Katju Memorial Lecture in April 2007, has called for a debate on the issue. After quoting several judgments of the Supreme Court on the doctrine of Separation of Powers, and the views of several eminent jurists, Shri Chatterjee said, “With all humility and sincerity, I feel that there should be introspection by all the organs of the State, so that they can work harmoniously to strengthen our democratic setup.” In the same speech, the Hon’ble Speaker has also made the point that there is no redressal for the ‘abberrations’ when the judiciary oversteps its boundaries and impinges on the jurisdiction of other organs of the state. Shri Chatterjee cited the Jagdambika Pal case of 1998 and the Jharkhand Assembly case of 2005 as examples of the Supreme Court’s “unfortunate intrusion” into the “well-demarcated areas” of the Legislature and described these orders as having “upset the delicate Constitutional balance between the Judiciary and the Legislature.” The Hon’ble Speaker went on to say that “the Constitution does not contemplate a super organ nor confers an overriding authority on any one organ. No organ has any power to superintend over the exercise of powers and functions of another unless the Constitution strictly so mandates.” He noted that “of late, it is being noticed that the lines demarcating the jurisdiction of the different organs of the State are getting blurred, as a section of the Judiciary seems to be of the view that it has the authority by way of what is described as ‘judicial activism’ to exercise powers, which are earmarked by the Constitution for the Legislative or the Executive Branches.”
The fundamental Question which therefore arises is that under of our Constitution, the executive is accountable to Parliament and Parliament accountable to the people, but to whom is the Supreme Court accountable? Everybody has a conscience and an ego; he may be an ordinary citizen, a saint, an intellectual, a professional, a Member of Parliament or a judge. In the case of a judge, in the exercise of his judicial powers, that conscience is known as judicial conscience. Y. K. Sabharwal, the former Chief Justice of India has said that to err is human and judges may also make mistakes. It might not have happened so far, but can we rule out the possibility of a case wherein the judge’s ego has superseded the judicial conscience. In such a case, that fact may not be apparent from the face of it. In such a case then, what would be the remedy, the Supreme Court not being answerable to anyone except arguably through the very cumbersome and difficult procedure of impeachment of judges which largely depends on the will of Parliament where politics is likely to creep in. The Supreme Court, in Special Reference of 1983, pertaining to the interpretation of Article 317 of the Constitution, more specifically, dealing with the removal of a member of the Public Service Commission noted that “The Judges of the Supreme Court can be removed from their office only in accordance with the procedure prescribed by Article 124(4) which is made applicable to the Judges of High Courts, the Comptroller and Auditor-General of India and the Chief Election Commissioner by Articles 218, 148 and Article 324(5) respectively. Members of Public Service Commissions are, in one sense, given a higher degree of protection by the elimination, as far as possible, of political pressures in the matter of their removal. Any allegation of misbehaviour made against them has to be examined by the Supreme Court on merits unlike the allegations made against those others whose removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament.”
The Supreme Court is the custodian of our rights and the protector of the public against arbitrariness of the Executive, and their wisdom is not in doubt. The Supreme Court is held in high regard and esteem by a majority of the citizens of India. There is evidence to suggest that people of India repose and have reposed implicit trust, relentless faith and greatest confidence in the Supreme Court. Indeed, the credibility of the Supreme Court of India is rated the highest in the world. When their power was impinged upon by the 42nd Amendment to the Constitution in 1976 under extraordinary circumstances, the same powers were restored by 44th amendment as the people did not approve of that impingement. The independence of the judiciary is the surviving pillar and the bedrock of our democracy. When A N Ray, J. was appointed as the Chief Justice of India after superseding Justices Hegde, Grover and Shelat, there was an uproar in which all the intellectuals, the politicians and bar association joined in protest. It was alleged that the senior judges had been superseded solely because their judgment in Keshavananda’s case had been unfavourable to the government. Once Again in 1977, H.R Khanna, J. was superseded and M.U. Beg, J. was appointed the Chief Justice of India. In both the cases, the senior most judges who were superceded resigned. Mr. Atal Bihari Vajpayee condemned the supersessions and opposed the then Prime Minister, Smt. Indira Gandhi’s reliance on the American system of judicial appointment in defence of her government’s actions. He said, “It is wrong to give President Roosevelt’s example. President Roosevelt was the president of the U.S, where the appointment of the judges is approved by the Senate. There have been many instances where the Senate rejected the Presidents nomination and the president had to send it another name. There is no such procedure in India. Then again, President Roosevelt’s Council of ministers did not have any members who were once communists and still talked of scientific communism. His party did not have people who discussed judges’ class character. His council of ministers also did not have senior members who did public mud- slinging at the judges, but when there was fear of a suit of defamation retracted their statement and did a white wash.” Mr. Vajpayee, quoting Sir Winston Churchill, said, “With principle of complete independence of the judiciary from the executive is the foundation of many things in our island of life. It is perhaps one of the deepest gulfs between us and all forms of totalitarianism. The judge has not only to do justice between man and man but he also-and this is one of his most important functions-has to do justice between citizens and the state.” He condemned the theory of committed judges. Thankfully, such a situation has not arisen since, nor is likely to, in view of the detailed procedure of appointment laid by the Supreme Court in S.P. Gupta’s case.
Everybody in India, including holders of Constitutional offices, esteemed intellectuals and revered saints, howsoever high they may be, are answerable directly or indirectly to the public and the law of the land, the ultimate arbiter of which is the Supreme Court. If any person is charged with corruption, they are ultimately answerable to the Supreme Court, without exception, but in the case of High Court and Supreme Court judges, a separate and exclusive in-house procedure has been evolved for them by the Supreme Court, to decide whether a prima facie case exists against them or not. There is talk of setting up a National Judicial Commission to regulate the appointment and disciplining of judges, and to bring about greater accountability and transparency in the functioning of the judiciary. The setting up of this Commission may fulfil these objectives, but that too, only time will tell. It should be seen whether the setting up of such a commission would be feasible, and in accordance with the letter and spirit of the Constitution. An investigation is necessary as to whether such a Commission would adversely affect the independence of the judiciary in any manner, as this Commission would supplant the Judges (Inquiry) Act, which deals with the inquiry preceding the procedure of a judge’s impeachment. It is a basic principle of service law that a public servant may be dismissed from service only by an authority equivalent or higher to the authority which appointed him. In view of this, any amendment in the procedure of impeachment of judges should not disturb the current position wherein the final authority to impeach lies with Parliament. However, the procedure of impeachment of judges needs to be simplified and made more transparent, and the Judges (Inquiry) Act can be amended to ensure that no motion of impeachment against a judge is referred to Parliament unless there is evidence to prove beyond a shred of doubt that the conduct of the judge merits removal and there is no other remedy or method to deal with the situation.
The prevailing procedure for appointment of judges of the Supreme Court and the High Courts, has also been subject matter of debate and controversy in recent years. By virtue of the 9 judges (7:2 majority) bench ruling of the Supreme Court in Supreme Court Advocates on Record Association v. Union of India, the Court took over the power of appointment of judges and held that the recommendation for appointment should be made on the recommendation of the Chief Justice of India in consultation with his two senior-most colleagues. In an article in ‘People’s Democracy’, the mouthpiece of the Communist Party of India Marxist (CPM), S Ramchandran Pillai voiced the fear that such a procedure could lead to the appointment of judges who held similar ideological and political positions. The article goes on to say, “It may also lead to the friends and relatives of the collegium or judges sneaking into the panel and the emergence of a coterie in judges’ appointments. The present system is incapable of appropriately addressing the diversities in India and is not open to public scrutiny and lacks accountability and transparency.” The article seeks a joint role for the executive, legislature, public and judiciary in the recruitment. Further, Shri Pillai has also called for a change in the impeachment process for judges, describing the present process as ‘impractical’.
The procedure for impeachment
The integrity of the Hon’ble judges of the Supreme Court is unimpeachable, and their intelligence and sagacity is par excellence, but the dictates of their duties may not permit the judges to socialize and interact with the general public, in consequence of which they lead a cloistered life and it is felt that the judges may not be fully aware of and in touch with the needs and problems faced by the common man. With the advent of electronic media, this situation may have improved somewhat, but the fact remains that the very nature of the Hon’ble judges’ duties and the ethical demands of their profession, removes them from realities at the grass root level. It is a common saying that the judges are the ‘Deputy Sergeants of God on earth’. This casts a very onerous responsibility on the judiciary, in my opinion and with the greatest respect, I feel that the deviation of judicial mind, in deciding a case, for any reasons whatsoever amounts to judicial corruption. This is the religious principle of the judiciary. There may be a need for regular soul searching as is necessary and befitting the highest and most honourable judicial body of the nation. Instead of a National Judicial Commission, a procedure can be evolved wherein an ‘exchange of positions’ is made between Judges and Law-makers. The Chief Justice of India or any puisne judge of the Supreme Court may be appointed by rotation as the Vice President of India, by virtue of which he would become the ex-officio chairman of the Rajya Sabha. Thus, he would be able to know the realities and difficulties faced by the Legislators and the needs, desires and ambitions of the general public. Similarly, Chief Justices of the High Courts may be nominated as members of the Rajya Sabha and in turn may get an opportunity to serve as ministers in the government. Conversely, eminent jurists, social workers and intellectuals who are members of the Rajya Sabha may be appointed as judges in the Supreme Court or Chief Justices of the High Courts. Such an interaction between the Judiciary and Legislature might create a better understanding and harmony between these two pillars of the State, and might go a long way in reducing conflict between them.
In a debate on television, eminent jurists like Fali Nariman, Soli Sorabjee and Harish Salve among others, emphasised the integrity and credibility of the Supreme Court, however, they mentioned that there is a perception in the minds of the people about the presence of corruption in the lower judiciary and the High Courts. While it is very easy to use the words ‘perception of corruption’, it is necessary that the perception should be substantiated with proof. I still feel that people have great confidence in the judges of the High Courts, and one or two stray cases of allegations of involvement should not lead to any specific perception of the judiciary as a whole. Similarly, it has been said by no less a person than the Hon’ble Speaker, Lok Sabha, Shri Somnath Chatterjee, that the credibility of Parliament cannot be judged on the basis of a few members’ faults. However, it would be interesting to see what the actual perception about Parliament is, in the eyes of the people, and a survey should be conducted in this regard. It appears that the credibility of Parliament is at an all time low, and the public reposes higher trust in the judiciary. Would it be fair to discuss and debate issues involving the powers and credibility of the judiciary as this would lead to an erosion of the confidence reposed by the people in the judiciary, the consequences of which would be disastrous. Today, it can safely be said that the wheel of governance in India is moving only because of the axel of the Supreme Court. If our nation were to be compared to a family, undoubtedly, the judiciary enjoys the most pious and prestigious role, akin to that of the family elder or pitamaha (grandfather). The judiciary is the arbiters of people’s rights, not only inter se the people, but also between the people and the Government, and open discussion and criticism of the judiciary may adversely affect the confidence that the people repose in it. No body is perfect, and it is very difficult to find perfection, but, at this point of time, it is undoubtedly the judiciary which commands the greatest respect and faith amongst the masses.
Judicial Activism within the boundaries of the Constitutional mandate, is surely necessary whenever there is a dissect between the government and the public, but overstepping of the Constitutional limits by the judiciary is likely to affect their credibility, and their image which is like that of a ‘saint’ in some respects. In this context, the words of Justice P. Sathasivam are pertinent, “Judicial Activism is a sharp-edged tool which has to be used as a scalpel by a skilful surgeon to cure the malady.” It is hoped that our judiciary will use this ‘sharp edged scalpel’ with the skill, wisdom and sagacity that the entire nation expects of them.
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 Article 79
 Article 74
 Article 130
 AIR 1955 SC 549
 Constituent Assembly Debates – Official Reports, Vol. XI, p 993, Lok Sabha Secretariat, 2nd Reprint 1989
AIR 1950 SC 27
AIR 1989 SC 1899
Ibid, Vol. IX, p 1195, Lok Sabha Secretariat, 2nd Reprint 1989
 AIR 1991 SC 686
 AIR 1973 SC 1461
 AIR 1980 SC 1622
 AIR 1983 SC 996
 “My four decades in Parliament” A. B. Vajpayee, Vol 1, p526
 Sunday, 20th May, 2007 (reported in The Economic Times, Tuesday, 21st May 2007, New Delhi)
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