Legal

Judiciary Is Crossing Its Limit And Interfering With The Executive

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This Blog is written by Rahul Chatwal from Christ University, Pune. Edited by Oshin Suryawanshi.

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INTRODUCTION

The framers of the Constitution of India from the very beginning had decided that there should be a separation of power to remove chaos and the problems that are raising so they classified the power into three categories they are legislative, judicial, and executive. This concept of separation of power was taken from the American Constitution. Each body was assigned with a different set of functions and they all have to follow different rules so that there can be proper functioning in the country. But among the other three bodies, the judiciary was having a great advantage over others. The judicial power can be applied in few cases only the judiciary was given a great advantage from the very beginning due to which the judiciary started interfering in the matters of the executive. Then the question arises in front of all that why the judiciary is crossing its limit and interfering with the executive. Before understanding these questions we have to understand that what is the separation of power means. The concept of the separation of power is as old as the Indian Constitution there are debates and several references from the landmark cases are being taken into consideration in actually defining that what are the actual powers of the Constitution and how they can be classified.

The doctrine of separation of power is acknowledged as an integral part and the basic function of the Indian Constitution. And it was commonly decided that three sets of power that is the judiciary, legislative and executive are subjected to bound by the constitution which shows that these three bodies have separate power, judicial responsibility, and the relationship with one another. And it was believed that these three bodies despite being different and have separate power are considered to be under the control of the Indian Constitution and was believed to be one and aim towards the public good. The basic difference between the executive and the judiciary is that the executive is a wing of the government that is only responsible for the governance of the state. The power of the executive is not only to frame the laws but also to implement them. The executive powers consist of the President as the head and the Prime Minister and the other Ministers. The president is considered to be the head of the executive head. Under the executive power there is Prime Minister according to Article-75 the Prime Minister is the leader of the executive of the state and along with the other Ministers tries to maintain the executive functions in the state. Both the President and the Prime Minister are part of a temporary executive who holds their term of office for only five years. The bureaucrats are considered to be permanent members of the executive who work under the government of India. On another hand judiciary is the system in the state which comprises the Supreme Court, High Court, and the Sub Ordinate Courts. The judiciary enforces and interprets the law and the main function of the judiciary is to decide the cases through several facts and laws. The powers of both the judiciary and the executive are different from each other that’s why the term separation of power is very relevant in the case of Kartar Singh V. State of Punjab, in this case, Justice Ramaswamy states that the doctrine of separation of power is the main and important aspect of the Indian Constitution and also explain that the legal sovereign power has been divided into three parts that are legislature that is related to make the laws, executive to implement such laws and the judiciary to interpret such laws within the power of the Constitution and a similar situation was in the case of I.G. Golaknath V. State of Punjab in which the government came out with the point that the separation of power is the key point that is very important in Indian Constitution. But as we all know that the judicial side of the Constitution from the very beginning has been given more importance as compared to the other two bodies.

This leads to conflict between the judiciary and the executive power of the government and the judiciary tries to create conflict with the executive power of the government. Several points lead to conflict between the two branches of the Constitution that is executive and judiciary. The conflict between the judiciary and the executive was for a very long time. It was since 1950. The first case that leads to the conflict between the power is the case that took place to prevail the zamindari system to an end through the legislation passed by the government. The provision of both the bodies was challenged in Kameshwar Singh V. State of Bihar in which the court held that the Bihar land reforms are unconstitutional and it violates Article-14 of the Indian Constitution. Several petitions challenged that Article-31 of the property rights. Then the Nehru government came up with the amendment to protect the executive powers that are the first constitutional amendment 1951. The amendment has the power to introduce the ninth scheduled through Article 31B insulting the act of any kind of judicial scrutiny. These are the factors that lead to the conflict between the judicial and the executive bodies. After the 1975 emergency, the government triggered judicial activism through the introduction of the new concept that is the Public Interest Litigation. From this concept, only the conflict between the two bodies arises as it started the conflict between the two bodies. The conflict between the two bodies started in 1950-

• In the case of I.C. Golaknath V. State of Punjab, the conflict between the judicial and the executive arose when the court had left no space for the parliament to amend any kind of fundamental rights. And later on, the 24^th amendment was brought which nullifies the amendment which was again brought up in the case of Kesavananda Bharati V. State of Kerala in this case the court held the amendment was valid which rise the conflict between executive and judiciary.

• State of U.P. V. Raj Narain in this case the Allahabad high court set aside the election of the Indira Gandhi after investigation when it was found that Indira Gandhi was involved in the unfair practice at the time of elections. Mrs. Gandhi in this retaliation imposed the emergency. This is also one of the important reasons for the rise in conflict between the judiciary and the executive bodies.

In 1970 the president use the power conferred to him under Article-366(22) of the constitution passed an order abolishing the order privy purses. In the case of H. Maharajadhiraja Madhav Rao V. Union of India upheld the validity of privy purses. This causes conflict between the judicial and executive bodies. The 26^th constitution amendment was passed by the parliament where Indira Gandhi argued the privy purse was against the equality rights against the citizens and the privy purse was abolished. This lead to conflict between the two bodies.

The judiciary and executive are the two domains of the state which have their conflicts for a long period. These two bodies have to solve the conflicts between them and work on the compromise scheme and this will lead to upholding the constitutional validity. The excessive interference of the judiciary will create trouble for the executive to govern the state. Similarly, the executive should work in the way that it should undermine the power of the judiciary and act on the most prudent basis while functioning like judicial appointments. The only key to maintain harmony is that there should be cooperation with harmony will surely strengthen the relationship between the judiciary and the executive bodies.

IMPACT

The impact and the consequences that the people have to face when the functions of these bodies cross the lines and try to cross the specific line will lead to the problem for the citizens. In the recent news president of India Ram Nath Kovind strictly ordered that the three bodies that are the judiciary, legislative, and the executive should work within their powers and should be within the limits of the bodies. Prime Minister Narendra Modi in the recent speech said that these three bodies that are the judiciary, legislative, executive are the backbone of the Indian Constitution. The balance between these bodies tries to maintain the balance in the Constitution of India. They said that the hopes of the people should be fulfilled while remaining within our limits. Several ways are given by the parliament to maintain the peace within the three bodies. The long-prevailing clashes between the judiciary, legislative, and the executive can be reduced with the help of cooperation and maintain the Laxman-Rekha while exercising the power. Both the wings of the state should inference and overstepping into powers of one another. Several steps can be taken to reduce the conflicts between the three bodies.

• Balance of power– this is one of the most important factors it is an international relation used for the actual state of affairs in which the power of the three bodies was equally distributed between the nations with equal parts. However, in India, the balance of power means that the authorities and the responsibility of everybody should be remained fixed and there should be a particular set of rules that are to be followed by the particular body only. Each wing is provided with particular functions that will lead to no confusion and they have to be within their limits only as prescribed by the Constitution of India. The executive should exercise its functions under the constitutional mandate as the constitution is the norm and supreme.

• Separation of power– this is another factor that is needed to settle the dispute within the bodies. Separation of power is the most important feature of the democratic government. The term defines that all the different bodies are provided with the different sets of power and then they should follow that only. We all have seen that several functions are shared among the bodies like for example the appointment of judges but this practice should be stopped as soon as possible and the body should use their powers that will lead to less chaos and conflict. In several cases like the Golaknath V. State of Punjab the government came out with the judgment that there should be the proper separation of power and hence both the wings of the state should prevent from interfering in each domain and work under the constitutional scheme of the separation of power.

• Functional autonomy– this is one of the most important features as in this all the wings especially the judiciary and the executive should maintain their functional autonomy to reduce the conflicts between both the bodies and should not interfere in the work of the other wing. The upholding of functional autonomy of both the domain shall prevent them from falling in the conflict between the judiciary and the executive.

• Cooperation in work– the judiciary and the executive should work together to maintain the cooperation for the achievement of constitutional goals for the constitutional scheme. the domain has to work together to promote welfare and develop a state where the people can live happily. If all the domains follow these principles then these problems would never exist.

CASE LAWS

Several case laws are related to the fact that the judiciary is crossing its line and interfering in the work of the executive.

• In the case of I.C. Golaknath V. State of Punjab, the conflict between the judicial and the executive arose when the court had left no space for the parliament to amend any kind of fundamental rights. And later on, the 24^th amendment was brought which nullifies the amendment which was again brought up in the case of Kesavananda Bharati V. State of Kerala in this case the court held the amendment was valid which rise the conflict between executive and judiciary.

• In Maneka Gandhi V. Union of India in this case the arbitrary power was used and Maneka Gandhi was not allowed to travel in the Foreign country and her passport was also seized. The court quashed the order and said that the right to travel foreign comes under Article-21of the Constitution. The concept of judicial review and judicial activism opened the large scope for the courts to intervene in any kind of action by the executive. This case also leads to a rise in the conflicts between the two domains.

These are the landmark judgments that are related to the situation when the judiciary tries to interfere in the work of the executive body.

LEGAL PROVISION

Several laws are made by the government of India to regulate the doctrine of separation of power and several laws are made to reduce the conflict between the three domains. . The only key to maintain the harmony is that there should be cooperation with harmony will surely strengthen the relationship between the judiciary and the executive bodies. The several laws that are mentioned in the Indian Constitution are-

• Article 50(i) states that the state or the government should ensure that the functions and the regulations of the judicial branch should be different from the executive branch and they should not interfere in the working of each other and it is considered to be one of the most important article related to the separation of power.

• Article 121(ii) and 211(iii) states that there should be a special provision that is to be made to just check that judiciary body powers should be separated from the power of the legislature and the article also states that how justice is delivered or how the judge is discharged from the court cannot be discussed in the legislature.

• Article 122(iv) and 212(v) state that the article is aimed at keeping the judiciary separated from the legislature. It does by so stripping the judiciary any power to review and question the validity of proceedings that take place in the legislature or the parliament.

• Article 361(vi) states that the judiciary and the executive should be separated. It states that the President or the governors are not answerable to any court in the country for the actions and the activities are taken in the performance and exercise the power and the duties of the office.

These are the laws that are related to the separation of power and are considered to be the most important part of the Indian Constitution.

CONCLUSION

The dominion of the separation of power is being introduced in the Indian government and the separate power has been given to three wings that are judicial, executive, and legislative that all the bodies have to work in their limits and work in their limits only. The government said that the hopes of the people should be fulfilled while remaining within our limits. Several ways are given by the parliament to maintain the peace within the three bodies. The long-prevailing clashes between the judiciary, legislative, and the executive can be reduced with the help of cooperation and maintain the Laxman-Rekha while exercising the power.