For any country to function effectively- the three pillars of the Government: The Legislative, Executive, and Judiciary must work independently while maintaining a system of checks and balances precisely known as separation of power. The Legislature makes laws, the Executive implements and the Judiciary interprets these laws to adjudge the legal dispute and redress the grievances. Any Government functions efficiently and profusely when the three pillars divide their responsibilities and work independently while limiting their boundaries. Separation of power is necessitas for the survival of democracy. As has been well said by Lord Acton:- “Power corrupts and absolute power tends to corrupt absolutely”. Separation of power works efficiently only when the three branches work independently; they may cross their boundaries only as permitted by the Constitution. No democratic nation exists with strict separation of power or no separation of power. These pillars of the government are interrelated and intertwined- to keep them sectionalized is an arduous task.
India, The United Kingdom, The United States of America, etc have adopted the system of separation of power. The USA follows an unbending interpretation of the term ‘separation of power’ while India and the UK follow separation of power passably. In Indira Nehru Gandhi v. Raj Narain, Chandrachud J. also observed that the political usefulness of the doctrine of Separation of Power is not widely recognized. No constitution can survive without a conscious adherence to its fine check and balance. The principle of Separation of Power is a principle of restraint which has in it the precept, innate in the prudence of self-preservation, that discretion is the better part of valour.” Supreme Court’s main function is to dispense justice and uphold and preserve constitutional rights- not to make negotiated settlements and intervene in political or executive matters.
It was Aristotle who came up with the theory of “Mixed government” while constituting one for the city-states of Ancient Greece. But The term ‘Separation of power’ or ‘Trias Politica’ came into existence and was coined by Montesquieu, an 18th-century French philosopher- the Monarch, Parliament, and the Courts of law. His writings had inspired the Constitution of the USA and the Declaration of the rights of man. His idea behind a well-ordered polity was the separation of functions of the independent bodies to promote liberty, efficacy and prevent the concentration of power. Separation of power works efficiently only when the three branches work independently; they may cross their boundaries only as permitted by the Constitution. His wise words in his book “There is no liberty if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
The Supreme Court has intervened in a political scenario of the recent farm laws’ protest. The main function of the judiciary is to interpret the laws and determine their constitutionality if ever a party approaches the court. The protests have been carried out against the legislature to repeal the newly enacted farm laws on the pretext that they are unjust. The protest against the farm laws is a political one that needs to be handled by the executive and the legislature. The judiciary should look after a matter only when the question is about challenging its legal position or constitutionality. The Supreme Court has not only intervened in the matter but also formed a committee for negotiating and settling their grievances with regards to the farm laws. These recent interventions are a blemish on the democratic sphere; where the separation of power is one of the most fundamental features. Every pillar of the Government should function and adhere to their boundaries of work.
Even though the Government has not been able to negotiate and end the protests for the farmers have been obstinate and hellbent on repealing the farm laws, it is not the judiciary’s domain to intrude into the matter and take any decision into their hands.
The latest developments have seen an upsurge of cases where the judiciary has intervened in legislative or executive disputes. This has been considered a dent in the system of separation of power. A democratic institution exists on the equilibrium maintained by the three fundamental pillars of the Government.
- Hazratbal militants: Dating back to 1993, judicial overreach has been in existence. The Indian military inorder to get the militants out from the Hazratbal shrine in Shrinagar, it had restricted food supplies to them. The Supreme Court intervened and ordered to make a provision of food to the militants for ending their sufferings. It also directed the Centre to arrange for a National Disaster Management Fund. The Court overstepped when they intervened in the matter and disturbed the army’s strategy.
- The BCCI matter: The matter arisen in the Supreme Court was regarding betting in IPL. While the Supreme Court set up the Lodha Committee, it recommended measures for reforms in the BCCI. It did not comment on the betting matter, instead referred the main issue to the Parliament. The BCCI is registered under the Tamil Nadu Societies Act, it also does receive any funds or grants from the Central or State Government. It follows its own bye-laws. Thus, the Lodha Committee had no authority to make recommendations regarding reforms in the BCCI.
- Jolly LLB 2: A petition was filed against this movie that it violated Section 5B of the Cinematograph Act, 1952- prevention of the certification of films that involve defamation or contempt of court. The court appointed a commission to look into the matter whereby the commission ordered 4 cuts in the movie and ordered the Central Board for Film Certification (CBFC) to recertify it. This was judicial overreach since the Cinematograph Act does not permit the court to certify or recertify any film and the court went against the provisions of the law without any power at hand.
- The recent Diwali fireworks: in furtherance of socio-economic objectives, the Supreme Court is interfering in the role of the Legislature and the Executive. The authority to comment on such a decision is that of the Executive which follows the laws made by the legislators. Banning of fireworks in Diwali 2020 was never a question of interpreting the law but applying the law. It was never a legal dispute that it needed redressal by the Court.
Formation of committees:
The 4-panel committee has been formed for negotiating and bringing a settlement between the farmers and the Government. The formulation of a committee by the judiciary has been more like a trend recently. The Supreme Court has set up the committee for recommending and settling the issues on farm laws. The issue with the panel is that the members of the committee have already voiced their opinion before even negotiating. Two of the panelists are already against the demands of the protestors. The purpose of the committee itself then turns futile. Moreover, the formation of a committee not for a constitutional matter; but a political one largely questions the agenda of separation of power that has been adopted since the constitution was written and enforced.
Importance of separation of power:
- Prevents autocracy
- Independence of the three pillars of the government
- Checks and balances
- The legislature and executive are refrained from making arbitrary laws
- Judicial independence
Checks and balances:
It is said too much independence – leads to autocracy. Thus, it is important to keep a check on each other. The Constitution thereby has made certain provisions in this regard.
- Judicial review: The judiciary plays a significant role in keeping the legislature and the executive within their boundaries through the power of judicial review.
- It can also strike down a law if it is found to be unconstitutional and declare any illegal or unconstitutional executive action as invalid.
- Appointment of judges: The judges are appointed by the President of India i.e. the Executive.
- Executive actions: The legislature keeps an eye on the functioning of the executive.
Judicial review v. Judicial activism v. Judicial overreach:
There is a thin line that divides all of these categories.
- Judicial review: in judicial review, the Court reviews a particular case and decided whether the law is constitutional or not. It is in the hands of the court to decide whether the law is consistent or not if there is any conflict in the eyes of law.
- Judicial activism: Judicial activism is a step ahead of Judicial review. It means that to preserve and protect the constitutional rights of the citizens, the Judiciary oversteps its boundary which is considered necessary for upholding democratic and constitutional values in the society.
- Judicial overreach: There is a thin line between judicial activism and judicial overreach- when the Judiciary crosses this line it becomes judicial overreach.
- Judicial overreach interferes with the executive and legislative functions
- Destroys the main spirit of the Constitution and intent of the law
- It goes against democratic values
- Judicial overreach defeats the purpose of separation of power
- Judiciary may unnecessarily get involved in politics
- Judiciary overpowering the executive and legislative harms the formulation of the three pillars of the government.
Thus, for any democratic set-up separation of power is not only essential but fundamental. The three pillars of the Government have been assigned functions. They have been separated, but their co-ordination and trust unite each other. Their functions may require certain meddling in each other’s domain, but it should be within certain boundaries. It is just like a batsman who crosses the crease to hit the ball off the boundary, but he misses the shot and gets stumped affecting himself and the whole team. Similarly, if any of the branches exceed their domain limit more than is required, consequently it dents the system of separation of power. Judiciary has the power to interpret the law, redress disputes, and deliver justice to society. It is said with huge power comes huge responsibility- the Judiciary to achieve socio-economic upliftment should address legal disputes within its domain and maintain the spirit of the Constitution. Whenever any oversight occurs at the hands of the legislature and the executive, the Judiciary through its weapon of judicial review can always redress the situation keeping in mind there is a thin line between judicial review, activism, and overreach!
Writer wants to be anonymous.
 Montesquieu, The Spirit of Laws, at pp. 151-52
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