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Ashwin Pandey, II year of B.A.,LL.B. from The West Bengal National University of Juridical Sciences, Kolkata

For there to be a state of stability in a political system, a balance needs to be created between the different organs. It is this balance that the doctrine of separation of powers seeks to achieve; it is concerned with maintaining a balance between the three organs of governance, i.e., the Judiciary, Legislature and Executive. The theory was first brought about in the 1700s by a French scholar, Montesquieu, who in his book “Espirit des Louis” or The Spirit of the Laws notes that if there is ever a situation where one branch of government has all the power concentrated in it then the government tends to descend into a state of tyranny. To avoid this, there needs to be a clear-cut demarcation of powers of the three organs. It is proposed by Montesquieu that an organ must neither interfere in nor exercise the functions of another organ.[i] These views were echoed in the United States of America, who in their Massachusetts Declaration of Rights of 1780 stated that the Legislature, Executive and Judiciary may never exercise the powers that have been bestowed upon the other two organs.[ii]

Separation of powers when looked at in the context of India, forms a part of the basic features of the Constitution. The three organs of governance in India comprise of the judiciary which consists of the Supreme Court, High Court and all lower courts, the Executive which comprises of the President and the Council of Ministers, and finally, the Legislature which is made up of the Parliament as well as the State Legislative bodies, and all of these bodies are bound by the Constitution and its provisions.[iii] This separation of powers in the Indian context has also been noted in multiple cases such as Kartar Singh V State of Punjab[iv] where it was reiterated by Justice K. Ramaswamy that the Legislature must make the laws, the Executive to execute them and the Judiciary to carry out all interpretations of these laws within the limits prescribed in the Constitution. In the Judgment of Golak Nath V State of Punjab,[v] then Chief Justice of India, Subba Rao again talked about the three organs of governance not “overstepping their limits”.

Normally when the discourse is carried out about one of the organs infringing upon the territory prescribed for another, cases of the Legislature crossing over into the turf of the Judiciary are cited, this was most recently seen in the Fourth Judges case[vi] when the National Judicial Appointments Commission or the NJAC was struck down by the Supreme Court. This body had been formed to bring about more transparency in the procedure through which Judges are appointed to the High Courts as well as the Supreme Court, it wanted to replace the prevalent collegium system of appointments which has widely been considered to be opaque. The body was struck down because it adversely affected the independence of the Judiciary and it represented an attempt by the Parliament to bring the Judiciary under its control which violated the principles of separation of powers. In this article, however, we will take a slightly different approach and look at instances where the Judiciary has breached the Separation of Powers and tried to operate in the realms of the other organs, thereby acting outside its scope as provided in the Constitution. The most prominent form that this infringement manifests itself in is in the form of Judicial Activism.

Black’s Law Dictionary talks about Judicial Activism as a philosophy of judicial decision making where it is the personal views of the judge with regards to matters such as a public policy that guides the process of decision making and leads them to suggest that any policy that goes against these views is violating provisions of the Constitution, they can further even ignore previous set precedents on the matter.[vii]

There does exist a school of thought who believe that there should be Judicial Activism and they promote the same. Their main argument pertains to the fact that the only reason we have something like Judicial Activism is that the Executive had, at some level, failed to perform its functions due to which the Judiciary had to step in.[viii] The Judiciary was forced to fill out these functions because in cases where basic human rights are being violated and the Executive is being unable to provide justice, the courts are duty-bound to prevent any miscarriage of justice.[ix]

This is why, even though it is the function of the Executive to execute laws and ensure good governance when a situation arises where the Executive fail in carrying out this duty, the judiciary needs to step in or else the entire administrative system could collapse. The Judiciary has been termed as an agent of social change and to maintain its legitimacy, the Judiciary needs to continue to contribute towards this social change.[x] In pursuance of this social change, Public Interest Litigations, more commonly known to us as PIL’s, came about. The main aim behind PIL’s was to allow the most downtrodden members of our society access to justice, as was promised to them by our Constitution.

There are, however, naysayers who believe that the Judiciary is itself limited due to some internal limitations. They cite the fact that when judges of our courts are appointed, it is done by an independent collegium instead of being selected by members of the Legislature who have been elected by the people and represent their mandate as well as ambitions. The notions propounded by these judges are a representation of their belief systems and will be influenced by a variety of factors such as how they grew up, etc, and these notions may not always be representative of what the masses believe, furthermore the judges can also have certain vested interests in pushing forth a certain opinion. The popular opinion of the people can only be represented by those who they have elected themselves through the democratic machinery, and any repetitive interference in the functioning of the Parliament can lead to a loss of confidence of the public in the governmental institutions.

When the Indian scenario is looked at, while it is true that PIL’s had originally come about to make justice more accessible to members across all levels of society, and it is also true that it has been at successful at some level, but we also cannot deny that there exists a flipside. Over time, the social justice aspect that the PIL had championed has undergone severe dilution, what had been initially brought about to provide justice to all, has now descended into an instrument which the courts misuse regularly to be able to carry out functions that lie outside their domain. This includes instances where the court has tried to intervene in complicated processes such as interlinking of rivers, distribution of food grains to members who are below the poverty line, etc.[xi] These are activities that ought to be carried out by the Government of India since they are the ones who possess the required expertise and competence to be able to carry out the same in the best manner possible. There have also been cases where the Courts have attempted to carry out administrative functions which include restrictions on accessing the core areas of tiger reserves, controlling automobile emissions, regulate blood banks, and even order military operations in Kashmir in the year 1993.[xii] These functions should only be carried out by the Government and not by the courts since it is the government who has been elected by the people of the country and are their representatives at the end of the day.

Another famous example of the Judiciary overstepping its bounds is the interpretation by the Supreme Court in the Third Judges Case[xiii] through which they took away the power to appoint judges from the President and the Executive and entrusted the same into the Collegium which was made up of the Chief Justice of India and the four senior-most judges of the Supreme Court.[xiv] This move came even though there does not exist a single Constitution in the world that entrusts the power of appointment of judges in the judges themselves.

Through all of these instances, we can see that despite the holier-than-thou attitude that the Supreme Court loves to adopt when their territory is breached by the other branches of Government, they have themselves shown little regard for these separations of powers when it has suited them, they have justified their moves by saying that it was something they had to do because of failures in other branches of the Government, and yet when a similar logic is applied against them they cry out about independence of the Judiciary. While the Judiciary must keep the Legislature and Executive in check, it is equally crucial that they do not overstep their bounds. We must never forget that our Nation is a democracy, and in a democracy, it is the Legislature that is chosen by the people of the Nation through their mandate, not the Judiciary. Our country cannot be brought under the reign of the unelected and while the Judiciary is the guardians of the Constitution, they mustn't turn into the very thing they have sworn to protect us against.


[ii]Comparative Law: Separation of Powers in India on JSTOR


[iv]Kartar Singh vs State Of Punjab on 11 March 1994 (indiankanoon.org)

[v]I. C. Golaknath&Ors vs State Of Punjab &Anrs.(With ... on 27 February 1967 (indiankanoon.org)

[vi]CALQ-Volume-4.2.pdf (manupatra.in)



[ix]The problem with judicial legislation - The Hindu

[x] Review - Juicial Activism- Need for Caution %28149-159%29.pdf

[xi]Disturbing trends in judicial activism - The Hindu

[xii]The need for judicial restraint - The Hindu

[xiii]In Re: Under Article 143(1) Of The ... vs Unknown on 28 October, 1998 (indiankanoon.org)