The doctrine of separation of powers is the golden mean to ensure the judiciary, executive and legislature discharge their duties in their respective domains effectively
The doctrine of separation of powers postulates supremacy in jurisdiction in their respective turfs between the three organs of the Government, namely the legislature, the executive and the judiciary. The first exponent of this principle was French Jurist, Montesquieu, who in his book, ‘The Spirit of the laws’, propounded this concept. While the concept forms the bedrock of our Constitution, yet it is conspicuously absent in any of its Articles.
Concededly, law-making is the power of the legislature, which is the true representative of the people. Any law, which fails to pass the muster of the Constitution, would be struck down by the judiciary which possesses the power of judicial review. Additionally, the judiciary is also the interpreter of laws made by the legislature — the Supreme Court being the final interpreter.
The concept of Public Interest litigation (PIl) is based on a Western concept salus populi suprema lex esto (regard for public welfare is the highest law). The Bombay High Court, in the case of ‘Piloo Mody vs State of Maharashtra’ (1975) Miscellaneous Petition No: 519 of 1974, exercised its powers based on this doctrine while ignoring the principles of locus standi.
The PIl jurisprudence came to be evolved by the then Chief Justice PN Bhagwati in the mid-eighties by treating a postcard from an organisation called the Bandhua Mukti Morcha as a writ petition to agitate the rights of bonded labourers.
What started as a social cause of giving access to justice to the marginalised strata of the society has traveled way beyond what it originally stood for.
Vineet Narain vs Union of India (1998) 1 SCC 226 came as a breath of fresh air when the Supreme Court held that lack of probity in public life leads to a high degree of corruption. It issued directions, which gave a statutory status to the Central Vigilance Commission and also directed that the Union Government shall ensure that the Central Bureau of Investigation (CBI) shall function in a non-partisan manner. Well, it remains a far cry and not long ago the Supreme Court was compelled to say that the CBI was still a “caged parrot”.
The Supreme Court ensured the supremacy of the “rule of law” in JMM bribery case, Jain Hawala case, Satish Sharma petrol pump scandal, Bofors, Fodder scam, Telgi scam, Taj Corridor case, Vyapam, Public Distribution etc. Curiously, there has not been a single allegation of judicial overreach in any of these cases.
The Supreme Court has also championed the cause of women facing harassment at workplace in Vishakha vs State of Rajasthan (1997) 6 SCC 241. Detailed guidelines were issued by the apex court to fill in a legal void as women could not be left remediless. The judgments of the top court, recognising the transgender as the ‘third gender’ and holding Talaq-e-biddat (instant triple talaq) as unconstitutional, need special applause.
In a time when the social media guides public perception, the police arrested two women for posting allegedly offensive and objectionable comments on Facebook, the Supreme Court in Shreya Singhal vs Union of India (2015) 5 SCC 1 came to their rescue by invalidating Section 66A of the Information Technology Act by upholding the right of free speech of the citizens. Similarly, the Supreme Court in Dr. Sabu Mathew George vs Union of India (2017) 2 SCC 514 directed the Union Government and the ‘Intermediaries’ Search Engines Google, Microsoft and Yahoo to evolve a mechanism to ensure that the mandate of the Pre-conception and Pre-natal Diagnostics Techniques Act, 1994, regarding prohibition of gender selection was achieved.
The apex court upheld the right to clean air of citizens as a right to life and thus traceable to Article 21 of the Constitution. A recent nine-judge Bench of the Supreme Court holding in the case of Justice KS Puttaswamy (Retd.) held: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”
Now, the problem is that the judiciary is slowly egging towards the turf occupied by the legislature and the executive. It is gradually arrogating to itself power that neither flows from a statute nor are a part of the constitutional scheme of things. The blanket order banning sale of liquor along the highways, no matter howsoever noble, put to jeopardy the interest of so many stakeholders who were not even heard in the matter.
These traders and workers were employed in a perfectly legitimate trade with a valid license issued by the State till the date of the judgement. The court did not even give them time to get into an alternative trade or to dispose of their stocks. The appointment of administrators to oversee the workings of the Board of Control for Cricket in India and the constant monitoring by the Supreme Court of this ‘private body’ is something that most people would disagree with despite agreeing with the fact that the organisation needs a thorough revamp.
The singing of the National Anthem is another example where despite the thought being absolutely laudable, a judicial order directing so may not be proper. A recent ban on the sale of fire crackers in the National Capital Region during Diwali may trace its roots in the fundamental right of the citizens under Article 21 to breathe clean air. It also achieved partially its results as the data shows that Delhi air was slightly better this year as it had 60 percent less crackers this Diwali.
However, one also needs to take into account the fact that only a few days ago, the same court had permitted the sale of crackers. While some may agree that larger good must prevail, yet one must balance competing rights. The petitioners of the case must have a roadmap for the next Diwali ‘now’ so that the workers and traders of the industry do not take a hit.
Finally, the quashing of the National Judicial Appointments Commission has met with stiff resistance from the executive, which feels that this is an invasion on the right of the legislature to enact a law. However, the general perception of people in the legal field is that the judiciary should be completely insulated from the executive if the rule of law has to prevail.
Judiciary knows and understands its needs best. In a country where the Government does not have a national policy on litigation and continues to be the biggest litigant, thank god we have a strong and independent judiciary.
(The writer is an Advocate in Supreme Court of India)