The Supreme Court is the ultimate repository of all judicial powers at National level by virtue of it being the Summit Court at the Pyramidal height of administration of Justice in the Country and as the upholder and interpreter of the law and Constitution of India and defender of the fundamentals at Rule of law as observed in P. RamachandraRao v. State of Karnatka. Administration of justice derives its strength only from the people’s confidence in the system the loss of confidence can lead to instability and threaten the edifice of democracy. Maladministration and non governance would invariably affect the people’s rights, giving rise to judicial intervention.
Separation of powers is one of the components of basic structure. As against executive power, Checks and balances are exercised by the Judiciary and the Legislature. But against the Legislature, it is exercised by the Judiciary. The executive and legislative actions are amenable to severe public criticism and their actions may be a doom’s day and incur public wrath resulting in overthrowing them out of power. The legislature is accountable for the actions of the executive, since virtually the party in power controls the executive. However, the Higher Judiciary is amenable to impeachment which is seldom resorted. Unlike executive and legislative actions, the judicial action is not amenable for criticism of such tone and tenor, in view of contempt of court laws.
The basic design of the Constitution is premised on the principle of separation of powers introducing the system of checks and balances. Conceptually, there is no difficulty in demarcating the respective functional areas of three principal organs of the State-the legislature the executive and the judiciary. Functionally, however, in the course of dispensation of justice, At times, situations do arise that require collection of an executive or removing some legislature lacuna. V.R. Krishna Iyer, Hon’ able former judge of the Supreme Court of India, has elegantly expressed his views on this grim and bizarre situation in one of his works thus:
The Indian experience with regard to the Executive, Judicative and Legislative instrumentalities over four decades has been one of exploitation darkening into misgiving, misgiving deepening into despair and despair exploding as adventurist violence. The categorical imperative for stability in democracy is, therefore, to see that every instrumentality is functionally kept on course and any deviance or misconduct, abuse or aberration, corruption or delinquency is duly monitored and disciplinary measures taken promptly to make unprofitable for the delinquents to depart from the code of conduct and to make it possible for people, social activists, professional leaderships and other duly appointed agencies to enforce punitive therapeutics when robed culprits violate moral-legal norms.
It would be relevant here to mention that the Supreme Court has always asserted as the most confidential organ of the state. Ever since the independence the Sanctum Sanctorum of justice has reaffirmed the common man’s faith in the judicial system of the country, let it be any sphere of the welfare scenario from harsh agrarian reforms to expansive innovative interpretation of the Art. 21, scrapping the attempts to overturn the democracy, maintaining the secular character of the constitution, implementing social security charter, sustainable development etc.
The present paper is the modest attempt towards highlighting the various problems which came to fore from the executive and legislature in the form of intrusions and overburdened judiciary and lapses in effective administration of justice.
2 Separation of powers
The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. The thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. The rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. For instance, if the legislature delegates its essential and constitutional functions to the executives, it would amount to “excessive delegation” and hence abdication of the legislative functions by the legislature. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review.
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of the doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, Separation of judiciary from the executive is mandated in Article 50 of the Constitution, with the independence of judiciary as a necessary corollary as observed in Chandra Mohan v. State of U.P., To promote the objectives of Art.50, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, wherein it was observed, thus:
“… the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme as was held in State of Bihar v. Bal Mukund.
The status of modern state is a lot more different than what it used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious roles to play, like that of a protector, arbiter, controller, provider. This omnipresence of the state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. But, it can claim the exercise of the incidental functions of another organ. This distinction prevents encroachment of an organ into the essential sphere of activity of the other.
It is the exercise of incidental powers only which has made executive grow everywhere in this social welfare state. It has assumed a vital role but, it has not usurped any role from any other wing. It just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburdened with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.
Though, just like American Constitution, in Indian constitution also, there is express mention in the Indian Constitution that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. It has accordingly been held that there is no rigid separation of powers. Although prima facie it appears that our Constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. Constitution restricts the discussion of the conduct of any judge in the Parliament. The Supreme Court and the High Courts has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of business. It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to separate the judiciary from the executive. But, since it is a Directive Principle of the State Policy, therefore it’s unenforceable.
In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the proceedings of the house, etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself.
The President and the Governor enjoy immunity from civil and criminal liabilities. But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. In India, since it is a parliamentary form of government therefore, it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.Generally the legislature is the repository of the legislative power but, under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance, framing rules and regulations relating to Public service matters, formulating law while proclamation of emergency is in force. These are some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also.
In certain matters Parliament exercises judicial functions too. It can decide the question of breach of its privilege, and in case of impeaching the President; both the houses take active participation and decide the charges. Judiciary, in India, too can be seen exercising administrative functions when it supervises all the subordinate courts below. It has legislative power also which is reflected in formulation of rules regulating their own procedure for the conduct and disposal of cases.
Therefore, it’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon fusion of powers, where a close co-ordination amongst the principal organs is unavoidable. Thus, every organ of the government is required to perform all three types of functions. Each organ is, in some form or the other, dependent on the other organ. The reason for the interdependence can be accorded to the parliamentary form of governance. followed in our country. Except where the Constitution has vested power in a body, the principle that one organ should not perform functions which essentially belong to others is followed. In re Delhi Laws Act case, wherein, it was held by a majority of 5:2, that, the theory of separation of powers is not part and parcel of our Constitution. It was also held that except for exceptional circumstances like in Art.123, Art.357, Art.213, the powers of legislation shall be exercised exclusively by the Legislature.
3. Doctrine of Judicial Review
Under Article 13 of the Constitution of India, the higher judiciary has been equipped with the power of Judicial Review, thereby expressly mandates, the Courts to do, is to consider the validity and legality of each and every executive and legislative action. Hence, every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by reason of doubt raised, in that behalf in the Courts. This power of Judicial Review as exercised under Article 32 and 226 by Supreme Court and High Courts respectively has been declared to be an integral and essential feature, constituting part of basic structure of the Constitution.
The well established Constitutional principle of existence of power of ‘Judicial Review’ and its need was indicated by Chief Justice Marshall in Marbury v. Madison has pointed out that “It is emphatically the province and duty of the judicial department to say what law is”. The foundation of ‘Basic Structure’ as laid down by Judiciary in Keshwanand Bharti v. State of Kerala, is in one way or other is the actualization of the ‘security wall’ around part III of the Constitution.
What does the principle of Basic Structure of the Constitution mean? Speaking jurisprudentially the Constitution of a country represents the grund norm, the basic norm -Comprising of fundamental principles, laying down the foundation of a civil Society. However when we refer to the basic structure of such a basic document, we seem to mean that we are essentially thinking of some fundamentals of the fundamentals, or some basic features of the basic document.
During the past more than three decades since the inauguration of the principle of basic structure in 1973, the SC has invoked and applied this principle in several cases, but often experiencing the difficulty about the true scope and extent of this principle, necessitating the intervention of the constitutional benches. Mention may be made of the following cases in which the principle of basic structure was closely examined and worked out like Indra Nehru Gandhi v. Raj Narain, Minerva Mills v. Union of India,Waman Rao and Others v Union of India, Bhim Singh v. Union of India. In these cases, and many more thereafter, attempt was made to expound the Basic Structure Principle and provide some measure of concrete basis for its application, but, nevertheless, the position still remained hazy- perhaps the same as was depicted by Mathew J. in Indira Nehru Gandhi’s case the concept of basic structure as brooding omnipresence in the sky, apart from specific provisions of the constitution is too vague an indefinite to provide a yard stick for the validity of the ordinary law. More or less, this situation with varying degree of emphasis, continued to prevail till the judgement of SC in I.R Coelho in which the nine judge constitutional bench have attempted to lay down the concrete criterion for the application of the basic structure principle. The matter dealt with by the Supreme Court by the bench of nine judges can be summarized as: Whether a Constitutional amendment, amending the Ninth Scheduled that damages or destroys the basic structure of the Constitution, can be struck down? Whether an enactment which has been struck down by court as violative of fundamental rights can be included in the Ninth Schedule?
By applying the ‘right test’ if any infraction is found to affect the basic structure then such law would not get the protection of Ninth Schedule. Where any Ninth Schedule law has already upheld by the apex court it would not be open to challenge again. However, if a law held to be violative of part III rights, has subsequently incorporated in the Ninth Schedule after 24 April 1973 then it would be open to challenge on the ground of ‘basic structure’ the relevant extracts of judgment may be mentioned here:
“The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973 the laws included in the Ninth Schedule would not have absolute immunity. The validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article19, Article 15 and the principles underlying these Articles… Insertion in the Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of the insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary….”
Legislations to oust the Jurisdiction of the Court
A. 39th amendment, insertion of 329(A)(4),329(A)(5) to validate election in all respects, not to be challenged in any court struck down in Raj narain’s case.
B. 42nd amendment, insertion of 368(4), 368(5), no constitutional amendment to be challenged, no limit on the amending, repealing power struck down in Minerva mills.
c.323A(2)(d),323B(2)(d) struck down in L Chandra Kumar’s case as were to ousted the jurisdiction u/Art.32, 226.
Over Ruling the Judicial Decision by a New Legislation
Whether the legislature has the competence to enact a new law or amend an existing law so as to nullify or render ineffective a Judgment of the court. Art. 141 of the Constitution provide that the law declared by the SC shall be binding on all the courts within the territory of India. Art. 141 therefore incorporate the principle of Stare Decises. Further Article 144 of the Constitution declares that all the authorities civil and judicial in the territory of India shall act in aid of the Supreme Court Though Article does not use the words executive and legislature, However, the term “authorities” referred to in Article 144, is enough to point out the intention of the Constitution framers that the other organs of the state have to walk in harmony with the Supreme Court and to abide by decisions.
One of the cases in the series pointed out that legislature can not declare a judgment of the Court to be of no effect. It was held that the court of law can pronounce upon the validity of a law and declare the to be null and void if it was beyond the legislative competence of the legislature or it infringed the rights enshrined in part three of the constitution.
Judiciary’s independence being the basic structure of the Constitution can not be undermined by passing a legislation to render ineffective a judgment or order of the court or asking any body not to obey the orders of the court. Apex Court in Municipal Corporation, Hyderabad v. New shrock Spg and Wvg. Co. ltd observed that no legislature in this country has the power to ask instrumentalities of the state to disobey or disregard the decisions given by the courts.
The question regarding the competence of legislative to set aside the orders of, the court was an assertion of the consideration before the apex court in Indian Aluminum Co. v. state of Kerala, in this case the state legislature had passed the Act validating the collection of tax, declared earlier by the court to be invalid. Court held that the consistent thread that runs through all the decisions of this court is that the legislature can not overrule the decision or make a direction as not binding on it but has the power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same.
Relying upon the recommendations of the Mandal Commission and SC’s directions in Indra Sawhney v. Union of India the reservations were introduced for other backward classes in the Central Government jobs, thereby excluding reservations in promotions and put 50% ceiling on the reservations, the Govt. again strike back by the 77th Constitutional amendment to article 16(4A) was introduced and reservation was introduced in promotions also, and 16(4B) was introduced to make the judgment invalid and excluded 50% ceiling and carry forward rule was propounded. To negate SC’s mandate by 85th constitutional amendment promotions in reservations with ‘consequential seniority’ was granted, although these amendments have been upheld in k Naagraj v. Union of India
Since the hoary past, there has been a lively debate on the role of judiciary in the present scenario. ‘Judicial Activism’ has emerged as the pivot around where such debates revolve. But due to one or the other reason the controversy about its definition has not been resolved. There are perhaps two major causes behind it. First, the term ‘judicial activism’ takes on vastly different parlance depending upon who is using it. Some politicians termed it as ‘Judicial Anarchy’, ‘Judicial Overactivism’ and ‘Judicial Despotism’.Albeit, in the eyes of some critics, the Indian Judiciary is also acting as a ‘third chamber’ and a ‘super executive’. Some scholars deny the very existence of the term. They are of the view that the judiciary is doing its plain duty and nothing more. Kuldeep Singh, J., former judge of Supreme Court of India blazed this new trend. Some other ‘legal-eagles’ steered the same course and referred to judicial activism as a ‘myth’ or as a ‘farcical term’.
It has to ensure that any law passed by the legislature is in conformity with the provisions of the Constitution and, it has to assure the citizens the effective implementation of these laws without executive’s move beyond its powers.
Judicial activism, in fact, is not distinctly separate concept from usual judicial activities. The expression ‘activism’, lexically as well as in ordinary parlance, means ‘being active’, ‘doing things with decision’ and the expression ‘activist’ should mean ‘one who favours intensified activities’. In this sense every judge is, or at least, should be an activist, as Justice Krishna Iyer observed, “Every judge is an activist either on the forward gear or the reverse. “
The centre’s legal position in this case, as filed in an affidavit before the Supreme Court was that “the Court is not to inquire – it is not concerned with – whether any advice was tendered by any minister or council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his council of Ministers”. In other words, according to the government’s view, the Council of Ministers could advise the President to pass any order (irrespective of its merits); the President had no option but to accept that advice under the Constitution; and the Court had no right to examine whether the action of the executive was legal or not. After hearing the arguments, in October 2005, the Supreme Court gave a summary verdict declaring the action of the government to dissolve the Bihar assembly as being “unconstitutional” and unreasonable. The Court, however, did not order the revival of the old assembly as fresh elections had already been announced by the Election Commission and were scheduled to take place after a few days. The Court’s verdict caused considerable public embarrassment to the government since the decision to dissolve the Assembly was taken by the President at a very short notice on the advice of the Union Cabinet.
Keeping in view the recent political developments at the Centre and in the states, we are firmly of the view that, on balance, the long term interests of the public and the ordinary citizen are safer if the Supreme Court continues to be the watchdog of India’s democratic conventions and final arbiter of the constitutional validity of any law or action approved by the legislature or the government of the day. It is no accident that the political pressure to limit the powers of the judiciary and declare Parliament as being “supreme” and representative of the will of the “People of India” is the strongest when a coalition government of parties with varying agenda is in power or when the political survival of the undisputed leader of the majority party is threatened. In these circumstances, political survival becomes more important than the legal merits or demerits of a case. The above view is not meant to detract from the great merits of the Parliamentary system of government in unifying India and giving us the freedoms that we, as the people, cherish. Thanks to the resilience and vibrancy of this system, India is now the world’s largest functioning democracy, with a free press, freedom of speech, freedom to join or leave political parties, and free elections in which the largest number of voters in the world cast their votes and choose their government. Without doubt, for all of us, unlike our counterparts in a large part of the developing world, these freedoms constitute a tremendous personal, social and political gain of which we can be justly proud.