The Constitution of India embraces the idea of separation of powers of the legislature, executive and judiciary, in an implied manner. Instead of clear-cut demarcation of powers, many aspects are guided by conventions, like those in the countries that do not have a written constitution like ours.

Even as the conflicts between the three organs are far from eliminated, there is another issue that begs the attention of the nation much more urgently, one of judicial overreach and judicial activism due to continued under-performance, and at times, non-performance of the executive and legislative organs.

Solving issues

Since the early 1990s, the Indian courts have stepped in with greater frequency on matters ranging from malfeasance in governance to legislative matters to political and policy matters, leading to constant friction between the three organs. The courts of today are not passive, with the attitude of merely striking down a law or preventing something from being done. Rather, the new attitude comprises issuing orders, positive affirmation cases and decrees directing remedial actions. Judicial activism refers to the interference of the judiciary in the legislative and executive fields. In the past few years, judicial activism has only flourished in India and acquired legitimacy with the Indian public.

One such example is the Public Interest Litigation (PIL), which is seen as a relaxation on the traditional rule of locus standi. Judicial activism has primarily arisen due to the failure of the executive and legislatures to act. As a result of that, judicial activism is triggered when the courts become activists and compel the relevant authority to act. This has led lawmaking in India to assume new dimensions.

Frequent interventions by the judiciary, which sometimes borders on judicial adventurism, tend to weaken the functioning of the other two branches of the constitution. Judicial activism is the use of judicial power to articulate and enforce what is beneficial for society whereas judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative and executive, thereby encroaching upon the legislature and executive’s domains.

The understanding of the difference between the two is critical for the smooth functioning of a constitutional democracy with separation of powers as its central characteristic and supremacy of the constitution as the basis of our nation.

Glaring instances of judicial overreach include the ban on Deepavali firecrackers citing rising pollution and safeguarding the environment; banning use of private vehicles after 10 or 15 years; monitoring police investigations; denying the executive any role in the appointment of judges by instituting a collegium which is said to be an extra-constitutional body; invalidating the National Judicial Appointments Commission Act; ban of liquor sale at retail outlets that are within 500 meters of any National or State highway; cancellation of telecom licenses in 2G case; judicial legislation in Vishakha’s case regarding the prevention of sexual harassment of women in the workplace; the Supreme Court of India’s setting up of the Lodha Panel to probe the allegations of corruption and match-fixing in cricket; and betting scandals in Indian cricket seen as interference not warranting the involvement of the apex court; interference in the educational policies of the government (see Islamic Academy of Education and Ors Vs State of Karnataka ); sealing of unauthorised commercial operations in Delhi, to cite a few.

Judicial overreach challenges the doctrine of separation of powers, which should be considered a basic structure of our constitution. The task of the courts should be to act in a way that compels the authorities to act and to pass executive orders rather than substitute judicial orders for administrative ones.

After all, unlike the other two branches of the constitution, the judiciary as an institution is not directly accountable to people. This very lack of accountability requires the judiciary to practice self-restraint, act responsibly within the ambit of its constitutional powers. Judiciary, like all other institutions in a democracy, should know and understand its limits. Our country cannot be run on judicial decrees.

(The author is Managing Partner and CEO, Surana & Surana, a law firm)