September 24, 2021

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Judicial encroachment into the executive domain : a word of caution

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This article is written by Reet Balmiki from NALSAR University of Law. This is an exhaustive article that discusses the concerns over the potential judicial overreach in light of recent events while providing a detailed overview of the roles of the judiciary and executive. 

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The recent trend in India is that of an active and more accessible judiciary. Though this approach has remarkably benefitted the citizens in several ways, it has also led to several controversial actions by the courts. The recent spate of incidents during the COVID-19 pandemic has again brought to light numerous concerns over a threat to potential judicial encroachment into the executives’ functions. During such distressing times, the neglected response by the executive has caused the judiciary to intervene and facilitate proper governance. The recent spate of such instances has induced several conflicting views about the performance of the judiciary during these trying times. While many have severely criticized the judiciary for encroaching into the executives’ domain, others have found these actions by the courts essential due to the government’s ineffective management. 

This article discusses these concerns in light of recent events and provides an overview of the roles of the executive and judiciary. It also covers the origin of the theory of judicial activism and distinguishes it from judicial overreach through several important judgements. Additionally, it discusses the need for judicial restraint and ways to avoid the threat of judicial overreach.

The executive and judiciary, two of the pillars of democracy, have distinct yet overlapping roles. The specific functions of the various organs of the democracy are complementary and enable the effective functioning of a democracy. 

The role of the executive branch is to implement and administer the public policy enacted and funded by the legislative branch. The executive enforced the laws made by the legislative. The judicial branch is responsible for the interpretation of the Indian Constitution and other laws and their application to the specific cases before it. They thus oversee the proper application of the laws laid down to real-world situations and guard several rights of the people. 

Such a division of government responsibilities into distinct branches to limit one branch from exercising the functions of the others emerged from the model of separation of powers. This model lies at the heart of every democracy as it advocates for the branches of the government to act independently while allowing a certain degree of mutual supervision amongst them. Therefore, even though the Constitution lays down the core functions of each branch, it does not advocate a rigid separation between the branches. The Indian Constitution, thus, finds a balance between restricting one branch from performing the core functions of another and providing effective checks and balances of power between the three branches. 

Power of judicial review 

As a part of its core function, the judiciary also has the power to review the decisions or actions of the executive and legislation and determine whether they are consistent with the Constitution. The power of judicial review emerges from the idea that the Constitution of India is supreme and oversees all other laws and actions in the country. Therefore, the courts have the power to declare any action contravening the Constitution as void. The Constitution has granted the judiciary the power of judicial review in the following provisions – 

  • Article 13 declares any law inconsistent with Part III of the Constitution to be void 
  • Articles 32 and 226 entrust the role of protection and promotion of fundamental rights onto the Supreme Court and the High Courts.
  • Article 372(1) declares all pre-constitution legislation inconsistent with the Constitution to be void.
  • Article 245 states that the powers of the Parliament and State legislatures are subject to the provisions of the Constitution.
  • Article 131136 grants the courts the power to adjudge disputes by interpreting the provisions of the Constitution. The interpretation given by the Supreme Court of India is bound by all other courts in the country. 

Now that we have discussed the role of the judiciary and executive along with the powers granted to the judiciary by the Constitution, we must look at the trend of approaches taken by the judiciary over the years and the current approach taken by the courts. 

Before the advent of judicial activism in India, the courts restrained themselves to merely striking down orders or preventing actions contrary to the Constitution. Such a passive approach limited the interference of the judiciary into the executive domain but also reduced the checks and balances over the organs of the government. However, with the liberalisation of access to justice and relief through mechanisms like the Public Interest Litigations (PIL), the courts have shifted their attitude towards positive affirmative actions, and issuing orders and decrees directing remedial actions. Through judicial activism, the judiciary upholds the rights of the people, preserves the Constitutional and legal system, and plays an active role in dispensing social justice. This approach allows the judges to actively exercise the power of judicial review and strike down the decision of another branch of government or overturn a judicial precedent. 

Therefore, this leads to an overlap of the activities of the executive and the judiciary. To understand when such an overlap is necessary and when it is excessive encroachment, we must first understand the situations in which this approach emerged and under what circumstances does judicial interference turn into “over-activism.

Origin of judicial activism in India

The transformation of the Indian judiciary from a passive system took place in several stages after the independence of India. The shift in the approach was not drastic and occurred in several steps that eventually changed the overall approach of the courts. However, a major part of the transformation took place after the emergency period in 1975

Post-independence era

After independence, judicial activism was mostly silent for over a decade. The courts were dominated by the executive and legislature. Their intervention in the actions of the other branches was minimal or almost nil. Overall, the judiciary’s role during this period was restricted to its core functions and its approach towards judicial interference was conservative. 

Pre-emergency era

The evolution of judicial activism in India began during the early 1970s in India when late Mrs. Indira Gandhi attempted to introduce progressive socialistic measures and nationalized 14 major banks to serve the cause of the poor. The decisions in H. H. Maharajadhiraja Madhav Rao vs Union Of India (1970) (Privy Purse case) and Rustom Cavasjee Cooper vs Union Of India (1970) (Nationalization of banks case) were considered to be judicial overreach and the judges of the court were severely criticized to being conservative and creating a gulf between the law and social realities and needs. This marked the beginning of the judicial transformation and resultant hostility between the executive and judiciary in India. 

Another landmark case of the pre-emergency era that gained widespread attention for the act of judicial activism is the Kesavananda Bharati case (1973) which dealt with the extent of amending power granted under Article 368. The honourable court, in this case, declared that the executive had wide powers to amend all Articles of the Constitution, but this power was not unlimited and cannot be used to abrogate the basic structure of the Constitution. The court, for the very first time, held that the Constitutional Amendment passed by the legislature was invalid. 

Emergency era

Despite the change in the role played by the judiciary in the above judgements, the transformation of the judiciary was still in progress. During the time of the emergency, the courts were flooded with cases concerning fundamental right violations, but the approach taken by the courts continued to be conservative. This was witnessed in the case of ADM Jabalpur v Shukla (1976), where the Supreme Court had to decide if the personal liberties of the people were to be upheld during the time of the emergency. The court held that the citizens had no right to move to the court against the actions of the executive and upheld the right of the executive to detain citizens. This case is still considered as a blemish on the Indian judiciary where the doors to seeking justice were slammed shut for the citizens. 

Post-emergency era

The Honourable Supreme Court transformed its approach by widening the scope of interference into public administration and policy decisions taken by the other branches of the government post the emergency period. The courts began creatively interpreting the text of the law in accordance with the object of the provisions. In addition, judicial activism became the popular approach taken by the courts due to the liberalization to the access and grant of justice through PILs and creative interpretation of the laws. 

Through the introduction of PILs, the poor and needy were empowered to have easy access to justice by relaxing the traditional rigorous locus standi. One of the landmark cases in making the procedure to approach the courts for justice more flexible is S.P. Gupta vs President of India and others (1981), where the court said-

“The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public-minded individual as a writ petition and act upon it Today a vast revolution is taking place in the judicial process; the theatre of the law is fast-changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.”

This case resulted in the widening of the powers of the courts along with the range of issues brought before them. Similarly, in the Maneka Gandhi case, the court adopted a new and liberal interpretation of Article 21 of the Constitution which paved the way for a wide range of rights to be read into the article. This case changed the outlook of courts while dealing with matters under this article and resulted in Article 21 being the most dynamic article over the years. 

The transformation from activism to overreach 

Following the emergence of judicial activism in India, the interaction between branches of the government has increased. In the initial years, the judiciary actively performed its functions and utilized its power to oversee the actions of the executive to protect the rights of the citizens. It has also asked the executive to perform its obligations as per law. While such interference by the judiciary is necessary and desirable, excessive interference with the core functions of the executive is against the model of separation of powers and is harmful to democracy.

When the judiciary oversteps its authority and encroaches into the domain of the executive, judicial activism turns into judicial overreach. The dividing line between the two is a thin one and is often overlooked or misunderstood by people. While a proactive judiciary well performing its functions is ideal, such proactiveness should not lead to interference with the proper functioning of the executive or legislature. 

There are numerous instances where judicial activism has proved to be beneficial. However, there also exist glaring situations where the judiciary has taken over the functions of another branch. Such overreach by the courts have severe implications on the smooth functioning of democracy –

  • It is inconsistent with the principle of separation of powers which is enshrined in the Constitution of India.
  • It leads to clashes between the judiciary and other organs of the government as the judiciary is overstepping its authority and encroaching into its domain.
  • The assumption of control by the judiciary reduces the faith of the people in the judiciary. The lack of trust in the justice system impairs democracy. 
  • The performance of functions of other branches by the judiciary leads to a diversion from performing the core functions of the judiciary. Such wastage of time in a country like India with a huge pendency in cases is undesirable and harmful. 
  • Performance of the functions of the executive by the judiciary can lead to underperformance on the executive’s account.

Over the years, the conflict between the judiciary and executive has revived in several instances due to frequent interventions by the courts. Before discussing recent cases that bring in the concern over potential overreach, let us understand the need for judicial interference with the help of a famous case. 

India follows the model of separation of powers and checks and balances. To maintain the system of proper checks and balances, there is a need for interference when necessary. Such a need arises in situations where corrective action is required against an action by the executive that is against the essence of the Constitution or when the legislation is silent or requires reform in special cases. 

A similar case where a need for deviation from the strict principle of separation of powers and judicial intervention arose was Vishaka & Ors vs State Of Rajasthan & Ors (1997). In this case, the court addressed the issue of sexual harassment faced by women at their workplace, an area on which the legislation was silent. The court recognised that “The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive”. However, due to a “legislative vacuum” in this regard and the urgent social need for an effective mechanism, the court laid down the Vishaka Guidelines. These guidelines were used for over 17 years as the mechanism in cases of workplace harassment. In addition, the court also asked the Central/State governments to adopt suitable measures including legislation that led to the enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The judicial intervention, in this case, was essential due to the absence of legislation governing the increasing number of cases concerning sexual harassment at the workplace. 

Though there exists a need for judicial interference in certain instances, it is also necessary to ensure that such interference does not lead to the judiciary performing the role of the executive. The judiciary must only direct or compel the executive to perform its duties as required, and must not take these duties upon itself. Lately, the judiciary has indulged in strict vigilance and frequent interference in the duties of the executives. While this is considered as judicial activism by some, many have expressed serious concerns over the court’s encroachment into the domain of the executive. Let us understand these concerns in light of a few recent orders passed by the courts.

Supreme Court’s order to stay the farm laws 

The Farm Acts 2020, which aimed to bring agricultural reform in India, faced severe criticism for barring civil court jurisdiction and placing the power with the state authorities. The fear that the implementation of these reforms would lead to misuse of power led to protests from the farmers against the limitation to their access to justice. 

Though the Supreme Court refused to interfere with the protesters’ right to demonstrate their dissatisfaction as part of their freedom of speech, it took it upon itself to conduct active negotiations between the stakeholders who appeared to be at a stalemate. In response to this, the Supreme Court passed an order staying the implementation of the three farm laws and formed a four-member committee to hear the concerns of all stakeholders and submit a report. 

This order by the court is a clear case of judicial overreach that dilutes the principle of separation of powers between the three organs. Though the court’s intentions might be genuine and its aim to resolve the disputes reasonably, the approach was taken by the court is a case of judicial encroachment into the executive’s domain. In the words of the former Supreme Court Judge Markandey Katju, “It follows that when a law is made by Parliament, it is only Parliament which can repeal or suspend its operation by making another law. The Court can no doubt declare a law ultra vires if it finds it unconstitutional, but it has no power to temporarily stay its enforcement even without recording a finding that it is prima facie unconstitutional.” Therefore, while the judiciary has the power to scrutinize the legality and Constitutionality of the farm laws, it cannot prescribe policy decisions or ask the government to repeal said laws. Such an act is excessive interference into the domain of the other organs and is thus a case of judicial overreach. 

Supreme Court’s order to make COVID testing free of cost

The Supreme Court, in the recent interim order, passed in Shashank Deo Sudhi v. Union of India(2020) made COVID 19 testing, both under the government and private laboratories, free of cost. This was done in response to the high cost of Rs.4,500 being charged by private labs was not feasible. The intention of the court is noble as the pandemic has affected citizens disproportionately. However, this action brought into light several concerns over the interference of the courts into the executive’s domain.

The court, however, went on to modify the order and held that “Free testing for COVID-19 shall be available to persons eligible under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana as already implemented by the Government of India, and any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19.” However, free testing for those covered by the modified order was already in place before the order was passed. 

The court while passing the order was forced to accept its limitations and recognize that it is not best suited to deal with such situations. This is a case of judicial (Mis)activism where the court’s order was rendered futile. The issue of free COVID testing was related to public business which requires knowledge of state finance. Therefore, the issue was to be best dealt with by the executive and not by the courts. The court thus lacked the practical knowledge and resources to know the consequences of making testing free of cost and should have refrained from intervening in this matter. 

Court’s supervision and interference in the executive’s efforts to deal with COVID

Since the beginning of the COVID-19 pandemic, the policies and decisions brought in by the government were visibly hasty and not thoroughly planned. Despite the efforts of the government, its unpreparedness and inability to ensure proper implementation raised several concerns over the approach of the government. 

During the first wave, the hasty decision of the Centre to implement a nationwide lockdown with the notice of a couple of hours left millions of poor stranded. Without the required economic capacity to either survive the lockdown or travel back home, several migrant workers were amongst the worst affected group. Due to the inept efforts of the Central and State government in dealing with the migrant crisis and their denial of the crisis, the Supreme Court and High Courts intervened and passed several guidelines to protect the rights of the migrant workers. The courts initially recognized that the duty to deal with the crisis rests upon the executive and thus refused to intervene in this matter. However, when the government’s incapability to manage the situation became evident, it was essential for the courts to intervene and lead the way in managing the predicament. 

Similarly, during the recent second wave, the executive’s unpreparedness in terms of infrastructure and resources despite several warnings against the second wave led to a surge in the number of deaths due to the shortage of medical oxygen. The ineffectiveness of the executive resulted in the loss of life of many patients and risks the lives of many others. 

Considering this, several High Courts intervened to and direct the proper management and availability of oxygen and other suppliers to patients. Additionally, the Delhi government’s inability to supply oxygen due to acute shortage resulted in the Delhi High Court directing the centre to ensure the allocated amount of oxygen is supplied to the national capital. However, the Centre failed to comply with this order which resulted in the High Court issuing a show-cause notice and threatening to initiate contempt proceedings against non-compliance. Though the Supreme Court stayed the contempt proceedings against the centre, it directed the centre to supply 700 tonnes of oxygen to Delhi daily. 

The judiciary has played a significant role in guiding the executive to combat the pandemic and protect the rights of the citizens. The frequent interventions by the courts during the crisis in the past year has led to several concerns over the possibility of judicial overreach. The orders of the courts during the COVID period have also interfered with the functions of the executive. However, the spate of interventions by the judiciary during these trying times is not due to an over-enthusiastic judiciary, but as a result of the executive’s inability to properly manage and regulate the activities. In a situation where the executive takes an insensitive approach, the refusal of the courts to intervene at the risk of being criticized for encroachment would leave the citizens stranded. Therefore, in the above situations, the courts played a pivotal role in protecting the constitutional rights of the people and thus should not be considered a case of unwarranted judicial intervention or “judicial adventurism.”

The theory of judicial restraint prompts the judges to limit the exercise of their power. According to this theory, the judges should restrain themselves only to striking down ostensibly unconstitutional laws. Judicial restraint is a procedural or substantive approach to the exercise of judicial review by the judges. Over the years, the courts on various occasions have themselves recognised the need and importance for judicial restraint to be implemented. There are several grounds for the justification of the need for restraint on the judicial system.

  • It ensures minimal encroachment by the organs of the government into the domain of another, thus upholding the principle of separation of powers.
  • It restrains the judiciary from acting like a “super legislation” and respects the functions of the other branches.
  • It fosters equality among the branches of the government by minimizing judicial interference.
  • It protects the independence of the judiciary. 
  • It restrains the judiciary from taking an “all-powerful” attitude which is harmful to democracy since the judiciary is not directly accountable to the people like the executive and legislative. 
  • It also restricts the judiciary from laying down specific guidelines which is the role of the executive as the judiciary often lacks the required expertise and resources to implement these guidelines. 

In the above ways, judicial restraint helps to maintain a healthy and well-functioning democracy. Judicial restraint complements the values of independence of the judiciary and the separation of power among the branches of the government. Therefore, the judiciary must utilize the great powers granted to it with utmost humility and self-restraint. 

With increasing activism by the judiciary post the emergency period, the threat of such activism aggravating into “judicial adventurism” or “judicial overreach” has prevailed since. Time and again the courts have passed orders and judgements on the verge of encroaching into the domain of the executive. The recent surge in judicial interventions has brought these concerns back to light. To avoid the potential overreach into the executive’s domain, the courts must implement the following suggestions –

  • While judiciary interference is desirable in situations where the executive is inactive, the courts are required to restrict themselves to their duty of compelling the authorities to act and pass appropriate executive orders. Substituting administrative orders with judicial orders is excessive use of the power granted to the judiciary and must be avoided. 
  • Excessive use of judicial powers is undesirable and evident encroachment by the judiciary. To avoid such an all-powerful approach by the judiciary, the judiciary must implement self-restraint. In cases of evident overreach by the lower or high courts, the Apex Court must intervene and restore the balance as per the Constitution. 
  • The principle of separation of powers is the essence of the Indian governmental system as per the structure provided in the Constitution. The duty to protect and uphold this principle lies on all three branches. Therefore, the executive and legislation must refrain from leaving the inconvenient decisions on the judiciary as it forces the need for judicial intervention. All three branches must actively perform their functions while cooperating and coexisting together. 
  • Since the principle of separation of power does not advocate a rigid separation between the branches and provides for mutual interaction, there is a need to establish clear limits for the powers of each branch. Therefore, to avoid excessive intervention, the limits to the judicial powers granted need to be clearly laid down and adhered to by the judiciary.

The court in the case of Divisional Manager, Aravali Golf Course v. Chander Haas, (2007) highlighted the importance and need for such restraint by stating “In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.” It also stated that “With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile failure to bear this in mind would lead to chaos.”

“Power corrupts, and absolute power corrupts absolutely.”

  • Lord Acton

The above statement rightly depicts the need for keeping a check on judicial activism and promoting judicial self-restraint. The judiciary cannot function in isolation and a certain level of interaction is required and desirable to maintain proper checks and balances. However, such intervention must be restricted to the judiciary’s active performance of its functions and must not lead to encroachment into the domain of the executive of the judiciary. The judiciary’s functions are limited to scrutinizing the legality and constitutionality of the laws or executive actions or directing the other branches to perform their duties as demanded by the Constitution. The judiciary must refrain from assuming the role of the other branches and formulating policy decisions. 

The recent surge in judicial intervention though seems as excessive interference by the judiciary is necessary due to the inability on the executive’s part to perform its functions effectively. As observed by Justice Gautam Patel, “Failure by the executive to govern will invite judicial interference.” Though such intervention might lead to clashes between the executive and judiciary, in case of a failure on part of the executive to perform its duties, judicial interference is the correct approach. However, the judiciary should only intervene and perform the executive’s functions when the executive is incapable of performing its duties even after guidance by the judiciary. 

Therefore, judicial encroachment into the executive’s domain depends on the particular situation. While in certain cases action by the judiciary might be excessive, the same action might be reasonable and necessary in another situation. The ultimate goal of the judiciary must be to respect the separation of powers and intervene only when desirable. 


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