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  1. On judicial intervention during COVID-19 crisis

On judicial intervention during COVID-19 crisis

Context:

Judicial intervention in response to the Union government’s flailing response to the health crisis has reached its apotheosis with the Supreme Court order forming a 12-member national task force for the effective and transparent allocation of medical oxygen to the States and Union Territories “on a scientific, rational and equitable basis”.

Relevance:

GS-II: Polity and Governance (Separation of Powers, Judiciary, Judgements & Cases)

Mains Questions:

What do you understand by “Separation of Powers”? In the light of intervention of the Judiciary during the Covid-19 Crisis, to what extent is the principle of Separation of Powers followed in India? (10 Marks)

Dimensions of the Article:

  1. Recent events bringing Separation of Powers into question
  2. What is the separation of power?
  3. Functional Overlapping amongst the organs of Government
  4. Concerns regarding overlapping of powers
  5. When is overlapping of powers beneficial?

Recent events bringing Separation of Powers into question

  • The Court has also mandated it to review and suggest measures for ensuring the availability of essential drugs and remedial measures to meet future emergencies during the pandemic. In other words, the national task force has become a judicially empowered group that may significantly guide the handling of the health crisis set off by the second pandemic wave.
  • When the Karnataka High Court ordered last week that the Centre should supply 1,200 tonnes of medical oxygen daily to the State, the Centre rushed with a challenge to the apex court. The Supreme Court declined to stay the order, describing it as a careful and calibrated one. Several High Courts and the Supreme Court are examining different aspects of the pandemic response, including availability of beds and oxygen.
  • The trend did raise concerns about the judiciary encroaching on the executive domain. There is some merit in the argument that allocation of resources based on a formula related to the present and projected requirements of each State is indeed an executive function.
  • Justice D.Y. Chandrachud, who heads the Bench hearing the suo motu proceedings, has clarified that the Court was not usurping the executive’s role, but only wanted to facilitate a dialogue among stakeholders.

What is the separation of power?

  • The separation of power is part of governing of a state in which the components of state like legislative, executive and judiciary remain independent with each other so that the powers of one branch are not in conflict with those of the other branches. It is also a part of independent of judiciary.
  • Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.  The intent is to prevent the concentration of power and provide for checks and balances.

Although the Constitution of India does not provide strictly for the separation of powers, these articles provide a general guideline:

  1. Article 50: This states that the State or the Government concerned will take appropriate steps to ensure that the judicial branch is separated from the functioning and working of the executive branch.
  2. Article 121 & 211: It, in a way, provides for the separation of the legislature and the judiciary. This article states that the conduct of justice or the way a judge discharges his duties of any Court cannot be discussed in the legislature (state or union).
  3. Article 122 & 212: This article is aimed at keeping the judiciary (the law interpreting body) and the legislature (the law-making body) separated. It does so by stripping the judiciary of any power to review and question the validity of proceedings that take in a legislature or the Parliament.
  4. Article 361: This article separates the judiciary and the executive. It states that the President or any governor of any state is not answerable to any court in the country for actions and activities are taken in performance/exercise of the powers and duties of their office.

What is check and balance?

Checks and balances, principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power. Checks and balances are applied primarily in constitutional governments.

Functional Overlapping amongst the organs of Government

  • While separation of powers is key to the workings of Indian Government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers.
  • Every organ is, in a way, overlapped in its practical functioning with the other two organs of the Government. This overlapping enables the organs to act as a check on each other without too much interference.

Overlapping Powers of Legislature

With Judiciary With Executive
Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it. In case of breach of its privilege and it can punish the person concerned.  The heads of each governmental ministries are members of the legislature. Through a no-confidence vote, it can dissolve the Government. Power to assess the works of the executive. Impeachment of the President. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature.  
   

 

Overlapping Powers of The Executive

With JudiciaryWith Legislature
Making appointments to the office of Chief Justice and other judges. Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence. The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. Powers under delegated legislation.

Overlapping Powers of The Judiciary

With ExecutiveWith Legislative
Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.Judicial review, i.e., the power to review executive action to determine if it violates the Constitution. Rigidity / Non-Amendability of the Constitution under basic structure.

Hence, we can see that although the Constitution mentions a certain amount of separation of powers, it does not do so strictly to keep every organ in check and ensure that it is not entirely free in exercising powers vested in it without any restraint or ulterior motive that will not be in the public interest. In addition to functional overlapping, there is a lack of administrative distinction between the three divisions of the Indian system.

Concerns regarding overlapping of powers

  1. The biggest issue of overlap might be that a particular organ cannot be held accountable for its decision, for example, Judicial Decision in 2G case, Coal Block case. (Unaccountability)
  2. The faith of the public in the institutions of the Government plays a very crucial role in such a complex and vest democracy. The organs repeated interventions into others’ decisions leads to the diminishing of the faith of the people in the quality, efficiency and integrity of them. (Erosion of faith)
  3. It undermines the spirit of democracy as too much accumulation of powers in organs of Government undermines the principle of check and balance. (Accumulation of power)
  4. Excessive infringement on each other jurisdiction may impede the smooth functioning of Government and hinder public service and overall development (Adverse effect on development)

When is overlapping of powers beneficial?

  1. Rule of Law: The accountability and equality in governance are enhanced by enabling power-sharing laws.
  2. Check and Balance: The overlap prevents arbitrary actions by the other two organs of the Government; an example is the power of judicial review of the Apex Court of India.
  3. Check arbitrariness: Constitutional demarcations of overriding powers decrease the scope of conflict among the government organs.
  4. Cooperation: The overlapping functions induce power-sharing and also provides power decentralisation, thus ensuring that the three organs can work hand-in-hand to solve problems faster.

-Source: The Hindu

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