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Published: Fri, 02 Feb 2018
Judiciary Exercising Executive Functions
John Marshall, the Chief Justice said on the role of the Court: “We must never forget that it is the Constitution that we are expounding intended to endure for ages to come.” This underlying thought made the Supreme Court of the United States supreme in due course of time.  But is such dwarfing of the other organs – the Executive and the Legislature of the government justified in a democratic set-up?
The framers of the Constitution proposed a theory of ‘Separation of Powers’ borrowed from the American Constitution. Each of the organs was assigned a special role in the Constitution of India. But the provision of judicial review marginally tilted the scales in favour of the Judiciary, giving it a supervisory role over the actions of the other two organs. But this power was to be used only in special cases. In light of the growing trend of ‘judicial activism’ has the Indian Judiciary over-stepped the border?
This research paper shall strive to answer such questions as – is judicial activism in the executive sphere justified? Is it permissible under the Constitution? Is it really needed? – to facilitate a better understanding of the issue of judicial encroachment on the powers of the executive. The paper will include studies on various facets such as – the doctrine of separation of powers, judicial review, judicial activism and judicial restraint.
The Separation of Powers
As is well-known, the debate about the doctrine of separation of powers, and exactly what it involves, is as old as the Constitution itself. It was extensively debated in the Constituent Assembly. It also figured in various judgments handed down by the Supreme Court after the Constitution was adopted reflecting the various controversies on defining the precise boundaries of powers of the different organs. These have been discussed below.
The first major judgment on this subject was in Ram Jawaya v. State of Punjab  . In this case the Supreme Court merely opined that the theory of ‘separation of powers’ has not been given its true place in the Indian Constitution; it has not been fully developed nor is it fully accepted in India. Mukerjea, J. in his judgement stated:
“The Indian Constitution has indeed not recognized the doctrine of separation of powers up to 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.”
Later in I.C. Golak Nath v. State of Punjab  Subba Rao, C.J. opined:
“The Constitution brings into existence different constitutional entities, viz. the Union, the state and the union territories. It creates three major instruments of power, viz. the Legislature, the executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.”
The two judgements brazenly contradict each other on the rigidity of the separation of powers. In Ram Jawaya the Court states that the Indian Constitution has dealt with this topic in a relaxed manner, leaving room for flexibility. According to this judgement the doctrine of separation of powers is not to be taken in its absolute form. 
This is in contrast to the stance taken by the Court in Golak Nath, where it endorsed a more rigid form of the separation theory. This opinion of the Court was echoed by the Supreme Court in Keshavananda Bharti v. Union of India  , the landmark case dealing with the amendability of the Constitution. Beg, J. reiterated that none of the three organs of the government can encroach upon the powers and functions of the other. This judgment whilst supporting a clear-cut separation of powers, also declared that the doctrine is a part of the basic structure of the Constitution.
The three judgments viewed together reflects a paradigm shift in the way the Supreme Court views this doctrine – moving from a very flexible interpretation, to a very rigid one. However, the Court’s interpretation does give one organ the upper hand over the other two  . The Judiciary has been empowered with extensive jurisdiction over the Executive and Legislature, enabling it to review their decisions. Such an interpretation is voiced in the Court’s judgment in Chandra Mohan v. State of U.P. 
To conclude the discussion on the topic of separation of powers the researcher would like to borrow from a speech by the eminent economic bureaucrat, Bimal Jalan:
The doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our Constitution. It is also commonly agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another. It is assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work in harmony and in tandem to maximise the public good. 
III. Usurping the Powers of the Executive – Judicial Review and Judicial Activism
The doctrine of separation of powers was devised by the Constitution framers as a method of “checks and balances”, a system wherein all three organs would work in tandem whilst at the same time there would be a check on arbitrariness. But a recent trend which the judiciary has engaged itself in has tilted the scales – judicial activism.
The Supreme Court as the guardian of Fundamental Rights considers itself to be on a higher footing than the Executive and the Legislature. Using ‘judicial review’ as justification, it feels it has a supervisory role over the other two. After all the Apex Court is the ultimate arbiter on the Constitution. Working this to its advantage, the Supreme Court has consistently tried to diminish the Executive whilst making itself more powerful. While defining the role of the Executive in Samsher Singh v. State of Punjab  the Court adopted the ‘residuary test’. Accordingly, the executive power of the state is what remains after the legislative and judicial powers are separated and removed. The court went on to add that the real executive power is vested in the Prime Minister and his Council of Ministers and that the President or the Governor at the State has to act only on the advice tendered by the Council of Ministers.
Whilst further diminishing the role of the President, the head of the Executive, the Supreme Court in R. C. Cooper v. Union of India  held that ‘under the Constitution, the President being the constitutional Head, normally acts in all matters including the promulgation of Ordinance on the advice of the Council of Ministers…the Ordinance is promulgated in the name of the President and in a constitutional sense on his satisfaction: it is in truth promulgated on the advice of the Council of Ministers and on their satisfaction’. Such orders of the Court literally relegated the office of the President to the weakest of the three branches of the government.
Adopting a more inclusive view, Justice P.B. Mukharji opines that for an effective administration, the legislative and judicial power should culminate for the Executive to become effective. He writes, ‘executive power can never be constitutionally defined and all constitutional efforts to define it must necessarily fail. Executive power is an indefinable multi-dimensional constitutional concept varying from time to time, from situation to situation and with the changing concepts of State in political philosophy and political science…Executive power is nothing short of “the whole state in action” in its manifold activities. In one sense, the legislative power and the judicial power, in order to graduate from phrase to facts, have finally to culminate in executive power to become effective’. 
Such subordination of the Executive is, in a way, result of the provision of ‘judicial review’ in the Constitution. ‘Judicial review’ as defined by Black’s Law Dictionary, reads, “a court’s power to review the actions of other branches of government, especially the court’s power to invalidate legislative and executive actions as being unconstitutional”  . In India, considering its pseudo-federal structure, judicial review is based on the fact that all the organs of the Government draw their authority from the Constitution and therefore, must work within its framework. The Supreme Court, playing the role of the guardian of the Constitution, has a duty to supervise that they abide by constitutional provisions. 
Article 13(2) of the Constitution states that the State shall not make any law which takes away or abridges the fundamental rights guaranteed to the citizens and any law inconsistent with this provision shall be deemed void. This gives the courts the power to question any legislation on the grounds of infringement of fundamental rights.  Thereby giving the Judiciary the upper hand over the Legislature. This is in contrast to the British system where the Parliament is supreme and there is no written constitution to impede its sovereignty. In the American Constitution too, there is no express grant of such a power to the Judiciary but it draws the power from an interpretation of the Constitution.  In the landmark judgment passed in Marbury v. Maddison,  the Supreme Court of the United States held that such a power was inherent in the Judiciary in a federal set-up. The Indian Constitution however, as stated earlier, has express provisions for judicial review enshrined in itself, especially considering the role of the Apex Court as the sentinel on the qui vive, the protector of the fundamental rights.
The Indian Supreme Court has left the American and British far behind in this regard, not being inhibited even whilst dealing with matters of policy and ‘political questions’. Whilst reviewing the policy of reservations suggested by the Mandal Commission, the Supreme Court observed:
“In a legal system where courts are vested with the power of judicial review, on occasions issues with social, political and economic overtones come up for consideration. They are commonly known as ‘political questions’. Some of them are of transient importance while others have portentous consequences for generations to come. More often than not such issues are emotionally hyper-charged and raise a storm of controversy in society. Reason and rationalism are the first casualties, and sentiments run high. The courts have, however, as a part of their obligatory, to decide them. While dealing with them the courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view the long term interests of the society as a whole. Such prophecy shall not always be answered by the strict principles of logic. Social realities which have their own logic have also their role to play in resolving them. The Mandal Commission case is an issue of such kind” 
Judicial activism is merely a manifestation of judicial review and in the words of Prof. M.P. Singh, “it is but a nick-name for judicial review”.  It bases itself on the theory of social want. This theory states that the judicial activism was born due to the failure of the Executive and the Legislature. Due to the irresponsible conduct of these two organs the Judiciary, being the guardian of fundamental right, had to step in to fill in the lacuna. It had to fit into the shoes of the Executive to ensure the greater good of the masses and the safe guarding of their interests. Whilst playing such a role, the Judiciary does not strictly stick to its Constitution-assigned jurisdiction but it draws such authority as the judges are bound to uphold the Constitution and the fundamental rights of citizens.
Of late, the Executive, more specifically the bureaucracy, has become a body whose primary motive seems to be selfish gain thus degenerating itself into a corrupt ineffective branch of the government. Under such circumstances the Judiciary felt the need to assume responsibility and act for the greater good of the society and to salvage the masses from oppression and harassment. In Sunil Batra v. Delhi Administration  , Justice V. R. Krishna Iyer described the Judiciary’s discontentment with the Legislature thus, “Though legislation was the best solution, but when lawmakers take for far too long for social patience to suffer. Courts have to make do with interpretation and curve on wood and sculpt on stone without waiting for the distant marble.”
The theory of judicial activism received further impetus in the case of Maneka Gandhi v. Union of India  when the Supreme Court redefined “procedure established by law” in Article 21. Prior to the judgment, “law” under this clause meant only the laws laid down by the Legislature but now it stood as “a fair, just and reasonable procedure”,  the due process of law. Under judicial review, judges only view laws with respect to the provisions of the Constitution and assess them on their constitutionality, but under judicial activism they play a more radical role – they make the law; they formulate policy so as to best serve the interest of the society.
There have been many instances in the recent past itself where the Court, feeling the actions (or lack thereof) of the Executive wanting, has ‘usurped’ the powers that, speaking strictly, belonged to the Executive. This is in keeping with the supervisory role played by the Court in safeguarding the interest of the masses. A few examples have been cited below.
The first case that comes to mind is the case of Uttar Pradesh’s Chief Minister, Mayawati’s bizarre plans to raise malls, shopping arcades and other “tourist amenities” around the Taj Mahal. The money to be spent on this project was thought to be embezzled and the plan itself would have destroyed the charm and beauty of the Taj had it been executed. The Supreme Court in September, 2003 directed the CBI to investigate into this – the Taj Heritage Corridorscam, in which Mayawati allegedly faced charges of cheating and forgery. 
In response, the CBI filed an FIR against Mayawati under Section 13(2) of the Prevention of Corruption Act and sought the permission of the then Governor T V Rajeswar to prosecute her. But the Governor rejected the CBI’s request. This only reflects how the Executive can misuse its authority to give effect to plans that prove detrimental to public interest.
Sticking with the Taj, the Supreme Court in famous order passed in 1996, directed all coal based industries around the monument to either relocate by April, 1997 or switch to natural gas. The Court took cognizance of the fact that the factories around the Taj were actively contributing to air pollution which resulted in the ‘blackening’ of the structure. Even though the upkeep of the Taj falls under the jurisdiction of the Archaeological Survey of India, the Supreme Court felt the need to intervene and usurp the space of the Executive in order to salvage the world-renowned monument from de-colouration.
Similarly, when the Delhi Government’s Rs.875 crore plan to clean up the Yamuna failed, the Supreme Court again filling in for the Executive, ordered the government to come-up with a new plan and have the river, which had turned into “bio-hazard”, cleaned. 
In the famous Delhi Land Sealing drive, the Supreme Court, again acting on behalf of the Executive, issued an order to the Municipal Corporation of Delhi to shut 15,000 odd illegal commercial establishments operating out of residential areas.  The Court regularly followed up on the developments and held the MCD responsible for making a mess out of the drive. It reprimanded the government for repeatedly making excuses citing problems of law and order and rejected a government petition to stop the drive. The Court set-up a monitoring committee, in collaboration with the MCD, to supervise the drive. Recognising the needs of the residents of these areas, the Court held that day-to-day grocery shops would not be sealed. 
More recently, in February this year, the Court slammed the Executive for the removal of night shelters meant for the homeless in Delhi. The Court was acting suo motu based on a newspaper article on the MCD demolishing one such shelter to accommodate the ongoing infrastructure expansion for the Commonwealth Games. The Court, yet again, brought the Executive to book for violating the rights of the people and appointed the Delhi Legal Services Authority to supervise the re-construction of night shelters. 
IV. Where do we draw the line?
It is well established that the Judiciary needs to rectify the errors of the other branches of the Government – the Executive and the Legislature, but how much of such interference is justified? Under the Constitutional set-up the Judiciary has been given its power of review to ensure the rights of the citizens are safeguarded and societal wee-being is not compromised but this power, just like any other, can be misused if used indiscriminately and without employing wisdom. Supporting this view in the American case Morey v. Doud,  Frankfurter, J. stated that “there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct.” His Lordship also felt that self-limitation by the Judiciary would help build its institutional prestige and stability. This opinion was also cited in the case of State of West Bengal v. Kesoram Industries Ltd.  in the judgment of R.C. Lahoti, J. feeling the need for the Judiciary to stay out of matters relating to tax such as this one being levied by the Bengal Government on brick earth.
Some quarters feel that just like any other body of administration, the Judiciary too can be plagued by corruption and its zeal to wrest power. P.B. Sawant, J. too shared this opinion whilst stating, “Autocracy of the judges – the judiciary – is to be more dreaded than that of the politicians, for there is no recourse against it. The healer becomes the killer, the saviour the captor”.  After all, the people can not approach anybody for redressal when they are wronged spare the Judiciary and if this body – the epitome of fairness and reasoning is corrupted by power there shall be no true justice left. Not for the Executive, not for the Legislature, nor for the People of India. There can be nothing more fatal to our democratic traditions than such a scenario.
Voicing the same concern in M.P. Oil Extraction v. State of Madhya Pradesh  , the Court felt the need for judicial restraint in policy matters. It held that “the Court cannot and should not overstep its limit and tinker with the policy decision of the executive functionary of the State.” The Supreme Court stated that it, the Judiciary, should only cross this threshold when a provision of the Constitution is violated and it should not meddle in the affairs of the Executive by questioning the efficacy of its policies. The Court felt that for the up-keep of the democratic set-up, the three organs should have mutual respect for each other and reign supreme in their respective fields.
Recently again the Supreme Court cautioned the Judiciary to not overstep it “constitutional limits”, else the politicians would step-in to curtail its power. The Court showed displeasure at the reasoning adopted by the Judiciary to justify judicial activism – that of the Executive and Legislature not playing their roles responsibly. Markandey, J. opined that their correction was not the job of the Judiciary but of the people. It is up to the citizens of the country to approve or disprove with the policies of the Executive and to turn their displeasure into voting the government out of power. The Judiciary need not encroach upon the powers of the Executive and Legislature and by doing thus disturbing the delicate power- balance enshrined in the Constitution. The Court made the observation whilst reviewing a Punjab and Haryana High Court ruling in the Aravali Club case  , which had ordered the creation of a regular job for tractor drivers in the state-run Aravali Golf Club in Faridabad. The Apex Court held that the Judiciary can not create posts; that is the prerogative of the Executive. The High Court ruling was accordingly set aside.
It is clear from this debate that the Judiciary wield the sword of activism with utmost caution. After all, it is one amongst the three pillars of the government and a wrangle for power between them would only prove detrimental to our democratic practices. The Court should act only when the rights of the citizens are compromised by the other two organs and it should not exercise its powers in judging the quality of policies designed by other governmental bodies. The interest of society is paramount and smooth functioning of democracy plays a pivotal role in its safeguard. The Judiciary should only act when this is compromised.
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