Relevance: GS-2: Separation of Powers between various organs, Dispute Redressal Mechanisms, and Institutions.

Key Phrases: Sedition, Doctrine of Separation of Powers, Judicial Activism, Judicial Overreach, Conflict of interest

Why in News?

• Recently Supreme Court of India through its order has stalled the operation of the sedition law.
• Supreme Court in its order said that it will not be appropriate to continue the usage of the Sedition law by the governments, till its re-examination is complete.
• Law Minister has stated that “Nobody should cross the ‘Lakshman Rekha’ and the court should respect the government and the legislature just as the government respects the court” in response to the court’s action.

Doctrine of Separation of Powers:

• Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive and the Judiciary. Although different authors give different definitions, in general, we can frame three features of this doctrine.
  1. Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
  2. One organ should not interfere in the functioning of the other organs.
  3. One organ should not exercise a function of another organ (they should stick to their mandate only).
• Thus, these broad spheres are determined, but in a complex country like India, conflict and transgression often occur by one branch over the other.

Judicial Pronouncement

• Kesavananda Bharati v State of Kerala (1973):
  • In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.
• Swaran Singh Case (1998):
  • In this case, the SC held the UP Governors’ pardon of a convict unconstitutional.
• Ram Jawaya Kapoor V State of Punjab (1955):
  • In this case, it was held that the Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.
• Indira Nehru Gandhi v. Raj Narain (1975):
  • Where the dispute regarding the Prime Ministers’ election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function that parliament, even under constitutional amending power, cannot exercise.

Judicial Activism:

• It is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.
•  Judicial activism enjoins judges to use their powers to correct injustices, especially when the other branches of government do not act to do so.
• In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.

Judicial Overreach:

• When the judiciary assumes the roles and functions of the legislature and executive, thus diluting the concept of separation of powers, it becomes judicial overreach. Unrestrained activism on the part of the judiciary often leads to its overreach.

Issues with judicial overreach:

• Dilutes ‘separation of powers’: It destroys the spirit of ‘separation of powers between Parliament, Executive and Judiciary, enshrined in the constitution.
• Limited experience: In many cases, courts are often ill-equipped and lack the experience to weigh the economic, environmental, and political costs involved like liquor ban case.
• No external regulation: The executive remains “accountable” to the people through a 5-year election process but judges exercise self-regulation and are insulated from any external control and thus accountable only to themselves, and their sense of their limits.
• Conflict of interest: Sometimes when judicial activism is exercised it is done for solely selfish, political or personal reasons.
• Undermines trust in Parliament: It reduces the trust people pose in the Parliament and elected representatives as frequent overreach signals executive inactivity and incompetency.
• Minority rule/ Undemocratic: Judicial overreach appears as an act of ‘tyranny of unelected’ in a democracy.
• Wastage of court’s time: It is a wastage of court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.

Conclusion

• The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore till now it has not been fully accepted in any of the countries, but this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid.
• The logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the centre of authority must be dispersed to avoid absolutism. It has been well said by Lord Acton, "Power corrupts and absolute power tends to corrupt absolutely" Conferment of power in a single body leads to absolutism. Thus, though power mustn’t get concentrated in one hand, a system of checks and balances must be maintained for smooth functioning.
• Judiciary is expected to maintain its primary allegiance to the law and the Constitution i.e. to the text of legal instruments and legal interpretation, and the body of judicial precedents.

Sources: The Hindu  Indian Express

Mains Question:

Q. Recently we have seen the differences between the executive and judiciary on Sedition Law. In this context discuss the doctrine of separation of powers as interpreted in various judicial pronouncements? Also, explain judicial activism and issues arising out of judicial overreach?