The separation of powers is considered to be fundamental to any democracy worth its salt. Through antiquity, different philosophers and scholars have propounded different arguments to defend the separation of powers, including Aristotle, John Calvin, John Locke and Baron de Montesquieu. Though their conceptions of the constellations of divided powers differed, the essential crux of their argument for the same was similar, i.e., that under the principles of constitutional engineering to aid a stable State, power cannot be concentrated in one source. To them, the monolithic concentration of power was detrimental not only for the public, whose interests were less likely to be considered but also for the State’s health. With each organ of authority, States with a clearly defined scope of legitimacy were, by design, more stable, more balanced, more representative and healthier than those without. The purpose of this article is to analyse the consequences of an inappropriate separation of powers between the executive and the judiciary in India today. In aid of this, it will first summarise a theoretical history of the concept and present a recapitulation of the Articles in the Constitution and case precedents that focus specifically on the separation of powers. Secondly, this article will explore precisely the function of the judiciary in general and how it differs from the basic functions of the executive, to delineate practically its scope of authority. Thirdly, it will study a concise history of judicial activism in India to understand its importance and comprehend the difficulties associated with judicial overreach. Finally, this article will seek to determine if the current logjam between the Executive and the Judiciary in Andhra Pradesh is an instance of judicial overreach.
Though the separation of powers has been an enduring trend in political thought, the philosopher most credited with its development is Montesquieu, who, in this work, ‘De l’Esprit de Lois’ believed that the concentration of power in an individual or an elite group results in tyranny. Therefore, the arbitrariness of power can be checked by its decentralisation and clearly defined limits, such that governmental power is vested in the three organs of the legislature, the executive and the judiciary, each of whom perform certain specific functions. If power is divided, it is difficult to misappropriate and abuse. In exploring the consequences of the unity of powers of governing, he specified that a State where powers are not separated is one in which there is no liberty of the citizens. If the legislature and the executive are combined, and the responsibilities for making and exercising laws is vested in a single authority, the voice of the people will be effectively silenced by despotism as there will be no space for dissent or discussion. If the judiciary and the legislative are combined, the interpretation of laws and the protection of citizens from its misapplication or excesses become impossible. As the lawmakers also perform as interpreters, the fairness and justifiability of any law can never be questioned. If the judiciary and the executive are amalgamated into one organ, the policing and law enforcement authorities become enmeshed with authority tasked with the responsibility to protect the public from the abuses of over-policing and misuse of power. Thus, the dispensation of justice becomes futile because the individual has no alter at which to seek protection for their rights. If all three organs are combined, then the State is incapable of constructing conditions wherein individuals will have any liberty, equality or fairness, and results in despotism.
Though India is a quasi-federal State, and there are a few intersections between the scopes of the authority of each organ of government, the basic character of separation of powers is sought to be upheld by the spirit of the Constitution. Article 50 (Directive Principle of State Policy) obligates the State to separate the judiciary and the executive, while under Article 123, the President as the executive head of the country has the discretion to exercise certain legislative powers. Though the executive appoints judges, it is only on the recommendation of the Chief Justice of India or of the High Courts’. As per Articles 121, 211 and 361, the conduct of the judges of the Supreme Court, High Court, the President and the Governor, respectively, are immune from discussion in the state or central legislatures, except in cases of impeachment. Under Article 13, the judiciary has the authority to declare any legislation or executive action unconstitutional or unlawful and render them void. As is evident from the Constitution, the purpose of such interconnected layers of authority is to maintain a steady system of checks and balances, where each organ, while independent, also works to maintain the integrity of the other two and ensures that neither becomes all-powerful.
This has also been recorded by years of case history. In I.C. Golak Nath v. State of Punjab 1967, the Supreme Court observed the Constitution brought to existence three separate constitutional entities (the Union, the States and the Union Territories), grants to them three major instruments of power (the Executive, the Legislature and the Judiciary), delineates their scope of authority and jurisdiction, and ensures that they function only in the spheres allotted to them. In the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court limited the power of the legislature to amend the Constitution on the occasion that such amendments violated the basic structure of the document and declared any such law unconstitutional. In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court referred to this Doctrine of Basic Structure to declare that items in the Ninth Schedule granted immunity from judicial review to certain legislations (even those that are violative of fundamental rights) are unconstitutional. Moreover, it also mentioned that amendments to the Ninth Schedule must be in accordance with the basic structure of the Constitution. In both these cases, therefore, the separation of powers between the legislature and the judiciary was made more pristine, wherein, though the legislature has the constitutional authority to make the laws; the authority to interpret and defend them, and to ensure that they do not violate the Constitution lies with the judiciary. However, it must also be clarified here that this separation of powers is not absolute in India, and there is functional and personnel overlapping between these organs. This was expounded in the case of Indira Nehru Gandhi v. Shri Raj Narain (1975) which specified that realistically this separation must be adhered to only broadly and emphasised on the need for checks and balances between each organ of the government. The separation of powers and the power of checks and balances are not mutually exclusive of one another however, because even though it does narrow the ambit of a rigid separation, it also specifically delineates the exact limits of the checks that one organ can exercise on another without compromising their integrity. The fact that the separation of powers must synchronise functioning without paralysing action was also promulgated in Ram Jawaya Kapoor V State of Punjab (1955). The basis of the separation of the judiciary and the executive is the Judicial and Executive Functions Act (XXIII of 1951), which was later applied as a model to all other states, except in Madras, Kerala, Andhra Pradesh and Madhya Pradesh that did so by executive action.
The judiciary is generally considered to be the citadel of the Constitution and the protector of the spirit in which it was created. Its most important function, therefore, is to interpret laws made and to apply them to particular cases. It is the primary and often the only custodian of the true connotation of any law and has the authority to decide whether it adheres to the Constitution. It is also a source of law, and not only does it determine the scope of law, its judgements also become binding through precedent. Where it guarantees the rights of citizens, it also protects them from the excesses of the legislature and the executive and ensures that their entitlements as nationals and as individuals are not compromised by other State apparatus. Thus, the judiciary has both permissive and restrictive powers, where it licences the exercise of governmental authority, but also constrain its unjustified implementation. It is the sole adjudicator of conflicts between individuals, states, and between the state and the Union, and thus safeguards the rights of each from impugnment by the other through redress and compensation. It also has the enforcement power to direct the executive or any individual to be answerable to it.
The executive, on the other hand, is the principal source of all legal enforcement action, and it possesses the power of the legal use of force and sanctions. As part of its administrative functions, it implements the laws of the legislature and judgements of the judiciary, maintains law and order through policing, prepares the blueprint of policies that is forwarded to the legislature for policy formulation, and appoints, promotes, removes and suspends civil servants. Its administrative power makes it fundamental to the functioning of any sovereign country, and quite simply, given its wide range of powers, if the executive is compromised, the very lifeblood of the State is too. The executive is also entrusted with the authority to conduct foreign relations in the name of the people, and therefore its importance transcends beyond the domestic boundaries of a country. In the contemporary international community of independent, free and equal States, the executive serves as the face of country, and often defines its future decisions and behaviour by negotiating and concluding treaties and international conventions subject to legislative ratification. The chief executive is also the
supreme commander of all armed forces and often has discretion in characterising war, conflict and peace, and subsequent enforcement action, both internally and externally. This ability to declare war, or an emergency that suspends citizen’s rights, makes the executive enormously powerful, and its actions are always under the careful observation of the judiciary, watchdogs and other civil society organisations to ensure it does not overstep its bounds. As the legislature continues to become overburdened and laborious in its functioning, the executive power has also undertaken certain legislative actions, such as that law-making through the preparation of legislative proposals and assent or veto of bills; summoning, proroguing and dismissing the Houses of the legislature; promulgating ordinances in the absence of a national legislature during exigencies; and through delegated legislation that is deputised to them by the legislature due to paucity of time and technical capabilities. It also prepares the budget, collects revenue, disburses funds after legislative approval, audits public expenditure, and determines the national economic policy. The executive also has certain judicial functions wherein it appoints the judges of the High Court and Supreme Court according to Articles 124(2) and 217(1) respectively. The chief executive may also grant pardon, reprieve, respite, or remission, that suspends, remits or commutes the sentence of any individual found guilty of offences delineated in Article 72 of the Constitution. Here, it is important to remember that neither the executive nor the judiciary is infallible, and one cannot prosper without the other.
Judicial activism evolved in India as the method by which the judiciary performed its function of creating a just, equitable and free environment for all citizens by extending its ambit and allowing judges to make rulings based on the political and rational prudence of the judges, rather than on existing or prevalent legislation. Though it evolved from Article 13 (and Articles 32 and 226), or the right of the judiciary to judicial review of laws that were unconstitutional by determining them void or demanding modification; it has also expanded to entail that the judges allow their perspectives about the principles of justice to guide their decision-making, and to increase individual rights to match the evolving socio-economic milieu. Therefore, the Supreme Court or High Court may modify power relations to render them more equitable or maintain the status quo in already-fair relations. It evolved from the landmark Kesavananda Bharati v. the State of Kerala, and the I.C. Golak Nath v. State of Punjab cases, where it declared that Fundamental Rights were a part of the basic structure of the Constitution, which may never be aggressed upon by any amendment by the legislature. The induction of Public Interest Litigations by Justice V.R. Krishna Iyer also increased its scope because it allowed the Court to respond to the needs of the larger public even if the aggrieved party is unable to file the petition. In the Hussainara Khatoon v. State of Bihar (1979), the Supreme Court decided upon the inhumane conditions of prisoners waiting interminably for trial, even though their maximum persecution had already been served without prosecution and ordered that the entitlement to a speedy trial is a Fundamental Right under Article 21 and that states should provide free legal services to those who cannot ensure they are awarded justice swiftly. In Sunil Batra v. Delhi Administration (1979), the Court adjudged a landmark epistolary petition from a prisoner complaining of cruelty by the warden and declared that technicalities might not prevent the Court from protecting citizen’s civil liberties.
The Court has also defended the Constitution through means of intervention, oversight and supervision of law-making and executive actions, such as in the case of Advocates-on-Record Association v. Union of India, where the National Judicial Appointments Commission Act and the 99th Amendment were declared unconstitutional and void as they injured the absolute independence of the judiciary from other organs of the polity. Thus, judicial activism is important as it inhabits a system of checks and balances against governmental excesses, provides room for the judges’ interpretation where the law is silent or unclear, breaks the decisional ties in an overburdened legislature, upholds citizens’ civil rights by generating a more democratic and participatory judicial process, and defends the constitutional principles when the executive and legislature fail to do so. Judicial activism, however, has often been viewed as judicial overreach or interference with the proper functioning of government by the executive and the legislature. While this is sometimes a result of general discontent over the judiciary’s interventions into their interests and objectives, it is also true that the concept of judicial activism does in part, oppose the strict separation of powers. Even though there is a case history of defending the fact that the Indian system never intended upon a rigid separation, it is also true that judicial activism is based somewhat upon the personal judgements and principles of judges who are not infallible and are invulnerable to bias as well. Unquestioning servility to the judiciary is, therefore, also injurious to democracy. The Allahabad High Court Order (2015), necessitating admission of children of public functionaries in government schools and the ban on firecrackers during Diwali (2020), among other decisions, have been condemned as a judicial overreach by the executive.
The logjam between the Executive & the Judiciary in Andhra Pradesh
The situation in Andhra Pradesh is complicated and occurs amidst the landmark decision of the Governor giving assent to the Andhra Pradesh Decentralisation and the Inclusive Development of All Regions and the Andhra Pradesh Capital Region Development Authority Repeal Bills (2020) without the concurrence of the Upper House, legalising the division of the state into Amaravati, Kurnool and Vishakhapatnam as the Legislative, Judicial and Executive Capitals, respectively. This unusual move has also been vehemently challenged by a host of petitions to the High Court, from the Opposition Telugu Desam Party of Chandrababu Naidu, farmers and other villagers of the capital region. This has led to a barrage of confrontations involving Y.S. Jagan Mohan Reddy’s state government, the High Court and the Supreme Court. During the hearing of the petitions, the High Court ordered the government to submit the details of the guesthouse project in Amaravati, about which the state government wrote to the Supreme Court, citing it as an example of the judiciary overstepping its bounds. While the government is free to change its capital is true, it is the judiciary’s opinion that all decisions of the Chief Minister need not be ultra vires, especially as YSR’s supporters have mercilessly attacked the judges on social media. Charges for the intimidation of judges has also been lodged as the High Court seized the State’s decision to move some offices to Kurnool and disagreed with the government on the L.G. Polymers styrene vapour leak case. It cannot be said here that the judiciary was overstepping because just as the executive is free to make certain decisions, the judiciary is also free to question them. The state government reacted by terming the Court’s move as politically motivated and against the doctrine of separation of powers in a letter to the Supreme Court, alleging that Justice NV Ramana (the next Chief Justice of India) was influencing the functioning of the High Court. This was dismissed by the Supreme Court, especially because its timing was suspicious as the Justice had ordered an expeditious trial of cases pending against the YSR legislators. Due to this letter, the High Court has also questioned why contempt proceedings must not be issued against the Chief Minister, given that the way in which the issue has been dealt with has been severely improper, both formally and in social media. This is especially so because though the state has the liberty to challenge the decisions of the High Court in the Supreme Court, it is essential to the spirit of a federation with three co-equal branches of government, that these challenges be levelled fairly and courteously.
Given the nature of judicial activism, and the fact that some of it is genuinely based on a judge’s personal political and moral opinions, it is difficult to delineate where judicial activism ends, and overreach begins. It is also a valid point that such instances of judicial activism must be deeply scrutinized. However, given the Public Interest Litigation lodged against the state government, the speed at which the Repeal Bills were passed, and the letter sent by the Chief Minister, the Court is well within its rights to review these decisions of the state government. The power of interpretation and judicial executive action is not contrary to the separation of powers, and it is unfortunate, both for the health of the state and for public consciousness that the government refuses to acknowledge the same.