Our constitution was drafted by men of great wisdom where every word said in the constituent assembly is reflective of the quality of seriousness which as a constituent body those eminent people had. They envisaged a situation that was otherwise not comprehended at that time and came out with a formulation that stood the test of time. We had to amend the constitution several times and that is because of the evolution in our own thought that we witnessed all these years. The word basic structure was not discussed at the time of constituent assembly, but it evolved as a judicial interpretation which put an indirect limitation on the power of parliament; rightly so. It is this judicial wisdom that prevented us from becoming a complete dictatorship during the emergency. Separation of powers evolved as an essential part of basic structure which in simple terms only meant that the three vital organs of the state i.e., legislature, executive and judiciary will continue to function in their own domain.
Unlike in the united states where appointments are presidential character, we are closer to the British system where the permanent establishment of government remains the same. We have permanent civil services guiding the political frameworks and implementing the decisions. The executive has primacy subject to certain limitations. They have an important function to perform that cannot be performed by anybody else and the executive has two levels of accountability. The executive actions are answerable to the legislative body subject to any restriction which law may impose. Its actions can be discussed through the minister in charge. Democracy inbuilt this accountability as far as the executive is concerned. All actions of the executive are further subject to judicial review. In a federal structure, the powers of the legislature are clearly defined in the 7th Schedule. Parliament may be supreme, but it has shared sovereignty with state government except for the concurrent list. The legislative body must be extremely careful to avoid any unacceptable situation by sticking to the lists given in the 7th Schedule. Legislative power is further subject to Part III of the Constitution. Parliament is a political institution embodied with judicial power while exercising its Power to impeach a Judge.
Judiciary as an institution is envisaged to be detached from all other collateral considerations as the judges have to decide on sound notions of law rather than trends of the day. The action of executives can be challenged before judicial review when decisions made by executives are supported by irrational reasoning. These are Wednesbury principles on which the court evaluates the decision made by the executives. Similarly, legislation can be challenged on the grounds of violation of basic structure, legislative competence, or violation of fundamental rights. Separation of powers envisaged the executive implementing the decisions, legislature legislating the laws, and judicial institutions exercising the power of judicial review to ensure the proper and fair exercise of power. It is not the function of the judiciary to substitute its own views and preference as the power is not extendable to better options or alternative options. In order to make democracy works both vision and statesmanship are required from all three organs. The reality of our constitutional functioning is that even erroneous interoperation of laws becomes the law.
In the 1950s–60s, we had a conventional approach and now we have become more aspirational as a country. There is a debate of competitive federalism over cooperative federalism and parallelly in the judiciary, the ’50s where a conservative era then came a time when the court became slightly assertive in the late ’60s. It followed with the supersession of judges in the supreme court and the apex court became more complacent in the ’70s. Post emergency the court freed itself from the rigors of the procedure so that injustice can be stopped which strengthen the democracy. Judiciary liberalized constitutional notion in relation to Part III and while exercising these jurisdictions there is a tendency to encroach the compartment of executive and legislature. Court has a legitimate authority to direct the executive to discharge the functions, but the court cannot discharge those functions on its own. One cannot be allowed to steamroll over the domain of others. Today under the label of PIL Court is now monitoring the construction of dams, interlinking of rivers, whether to have petrol or diesel cars? Whether a railway line can go from one place to another? How legitimate it was for the courts to suspend the Farm Laws? In Divisional Manager, Aravali Golf Course vs Chander Haas, 2007: “Before parting with this case, we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion, this is clearly unconstitutional. In the name of judicial activism, Judges cannot cross their limits and try to take over functions that belong to another organ of the State under our Constitution, the Legislature, Executive, and Judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise, the delicate balance in the Constitution will be upset, and there will be a reaction.”
Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is a broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each other’s domains. A new tool has been devised when there is no law then courts lay down judicial guidelines which are virtually judicial legislation something which is not contemplated in the constitution. Courts can strike down the actions of the executive and legislature without becoming executive and legislature. Courts are empowered to decide the constitutionality of laws, not the better alternative. Notwithstanding differences of opinion the three organs must show resilience by imposing self-discipline.
About the Author
Siddhant Mishra obtained B.A LL. B (Hons) from School of Law, KIIT Deemed to be University Bhubaneswar in 2016 and has been practicing and handling cases independently before the High Court of Judicature at Allahabad, Lucknow Bench. Siddhant is an avid reader and writer and writes regularly on issues relating to law and policy.