The resolve voiced by a Division Bench of the Supreme Court recently to “examine” the extent to which the judiciary can question the government’s COVID-19 policies drifts from the court’s three-judge Bench judgment previously in May 2021 which held that courts cannot be “silent spectators when constitutional rights of citizens are infringed by executive policies”.
GS-II: Polity and Governance (Separation of Powers, Judiciary, Judgements & Cases)
Dimensions of the Article:
- About the recent judgement on intervention by Courts
- What is the separation of power?
- Functional Overlapping amongst the organs of Government
- Concerns regarding overlapping of powers
- When is overlapping of powers beneficial?
About the recent judgement on intervention by Courts
- In July 2021, a Supreme Court Bench said that courts should not undermine the executive at a time when a “collective effort” was required to overcome the public health crisis.
- According to the latest judgement, the Executive has the benefit of experts with their expert knowledge and there are certain norms based on which every institution should function, hence, the courts intervention into matters pertaining to the executive should not be overpowering.
May 2021 Judgement on Separation of Powers
- In May 2021, the SC bench while hearing the suo motu case “Distribution of Essential Supplies and Services During the Pandemic” enunciated that our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform.
- Responding to the government’s argument that it should have “room for free play in the joints” while dealing with the pandemic, the SC bench said that the court has no intention to “second-guess the wisdom of the executive”. However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons.
- The judgment highlighted that courts across the globe have responded to constitutional challenges to executive policies which violate rights and liberties of citizens.
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:
- 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.
- 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).
- 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.
- 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 Judiciary||With 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 Executive||With 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
- 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)
- 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)
- 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)
- 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?
- Rule of Law: The accountability and equality in governance are enhanced by enabling power-sharing laws.
- 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.
- Check arbitrariness: Constitutional demarcations of overriding powers decrease the scope of conflict among the government organs.
- 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