Power Struggle To Continue


The Constitution of India envisages a Parliamentary form of democracy in India, based on the core principle of Separation of Power (SOP). Although the balance or division of power between the three organs of the state namely Legislature, Executive and Judiciary is far from being in a state of perfect equilibrium (as the case may be in the US, where there are sufficient checks and balances) but the Indian Constitution nevertheless ensures that the core tenet of SOP is maintained. However, since the time of Indira Gandhi there has been a power struggle going on between the Judiciary and the Executive as each as tried to assert its primacy. At various times, the Executive has tried to undermine the independancy of the judiciary while similarly, the judiciary also at times has tried to encroach upon the areas of both the executive and legislature by indulging in administrative matters as well as policy formulation. A classic example may be that of the SC imposing a ban on liquor shops within 500 metres of National and State highways. Thus, on the occasion of the National Law Day ie. 26th November (the day on which our Constitution was adopted by the Consistent Assembly in 1949) a session titled, ‘Judicial Review and Parliamentary Democracy – Balancing the idea of Separation of Powers’ was organized by the Law Commission and the NITI Aayog. Speaking at this session the CJI Dipak Misra and the Union Finance Minister Arun Jaitley put forward the contrasting positions of their respective organs.

Constitutional Roles of Each

As per our Constitution, Legislature that is the Parliament is the supreme law making body of the country, while the executive is the implementing authority. But effectively the policies are primarily framed by the Executive while the Parliament ‘guides’ decision making and also keeps a check on the authority of the Executive. The Judiciary is the final and sole arbiter of disputes. It has also been conferred upon the role of being the sole protector or the guardian of our Constitution. It alone has the power to interpret the Constitution as well the laws, rules and regulations. The principle of Judicial Review bestows the power to check the constitutional validity of all laws framed by the Executive/legislature, on the Judiciary. However, problems have arisen when either of these three organs have not adhered to their role and have tried to encroach upon the areas of the other. Let us look at how.

History of this power struggle

The power struggle is between Judiciary on one hand and the Executive and Legislature on the other. Although the history of the tussle dates back to Indira Gandhi’s period as has been mentioned above, but the real conflict arose only after 1993. In the year 1993, in the famous Second Judges Case, the SC appropriated the power to appoint and transfer judges to the higher judiciary (SC + all HCs) by instituting a system of Collegium. This was done on the pretext of securing the independence of judiciary. While there can be no denying of the fact that independence of judiciary is the bedrock of any functioning democracy but the idea of judges themself appointing themseves coupled with the opacity that surrounds the Collegium system, seems problematic. Thus, there has been a struggle since then going on between the Executive and the Judiciary over appointments, as the latter has argued that given the fact that they are the Representatives of the People, they should also be a part of the process. Presently there is an impasse on this issue as both the institutions have accused each other of delaying the finalization of Memorandum of Procedure (MoP) for appointment of judges.

However, to assume that this alone is the problematic area is to look at only the tip of the iceberg. The real issue as it was also highlighted during the talk is that of the differing perceptions or understanding of each other’s constitutional role. Thus, the two key areas of contestation are the domains of Judicial Activism and Judicial Review. Speaking at the session, Arun Jaitley categorically attacked Judicial Activism by stating that, ” I have often heard the argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It’s flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power… by an other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the Judiciary ? Arrears are pending.

Judges are not doing the job. So must somebody step in and now exercise that power ? The answer is no…And therefore it’s extremely important that the dividing line on the separation of powers is maintained. And therefore, by creating arguments, the thin dividing line cannot itself be lost.” He further pointed out that the Judiciary is not “trained” to take up the administrative or legislative roles, just as the Executive or the legislature is not “trained” of taking up the judicial task. While these arguments resonate well with conventional logic but there is a point that Arun Jaitley completely missed while putting forth these arguments. The fact of the matter is that it is Judiciary and the Judiciary alone which has been vested with the power to “protect” and “guard” the Constitution, by the Constitution itself. It is from this, that the Judiciary derives the power of Judicial Review as well as judical activism. However, at the same time it is also expected of judiciary to not cross that fine line between intervention and encroachment. Unfortunately the Judiciary has many a times in the past, as Jaitley also pointed out, encroached upon the areas of the Executive.

There can be no doubt that it is the constitutional duty of the SC to protect the rights of each and every individual against the arbitrary use of power by the state apparatus, but it must also be kept in mind that when this power degenerates into policy making or excessive intervention, then its results are often disruptive. It widens the gap between the Representatives of the people and the protector of the peoples’ rights. Thus, each institution must adhere to its constitutional role and try its best to not cross that fine dividing line. However, as the situation today posits it is likely that the tussle is going to continue.

-Contributed by Kunwar Suryansh

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