March 23, 2023

PC- Adv. Sanjoy Ghosh Twitter

Separation of powers and judicial activism- Analysis by Supreme Court

Separation of Power means, judiciary, executive and legislature should work in their own field and should not interfere in one other’s works. The doctrine was propounded by French Political Philosopher Montesquieu in his book ‘Espirit des lois’ in 1748. The American constitution makers were so much influenced by this doctrine and they used it in American government. Later on, this was used by other constitutions including India. Indian constitution does not use the doctrine in its raw form, we have used with some modifications.

The supreme court many times, tried to interpret this doctrine in Indian context. Therefore, we seem many court rulings on it.

I. C. Golak Nath and Others v. State of Punjab,1967

In I. C. Golak Nath and Others v. State of Punjab and Another,[1] Justice Subba Rao held speaking for the Court:

“It (the Constitution) demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land.”

Bandhua Mukti Morcha v. Union of India

What is this jurisdiction which is demarcated? Justice R.S.Pathak speaking for the Bench in Bandhua Mukti Morcha v. Union of India and Others[2] held:

“It is a common place that while the Legislature enacts the law the Executive implements it and the Court interpret it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself.”

The question would arise as to whether the powers/functions are cast in stone or whether the aforesaid powers/functions can legitimately be exercised/discharged by the other organs. We may in this regard again advert to what the Court held in the aforesaid case (supra):

“And yet it is well recognized that in a certain sphere the Legislature is possessed of judicial power, the executive possesses a measure of both legislative and judicial functions, and the court, in its duty of interpreting the law, accomplishes in its perfect action in a marginal degree of legislative exercise. Nonetheless a fine and delicate balance is envisaged under our Constitution between these primary institutions of the State.”

Overstepping of Demarcations

The High Courts and Supreme Court make Rules under the power granted to them. No doubt, they will be acting as delegates of the Legislature but the exercise of power in such cases would be legislative in nature.

When an Ordinance is made under Article 123 by the Executive, that is, the Union of India, it is a case of the Executive exercising legislative power. When Parliament adjudges a man guilty of contempt of itself and punishes him, the proceedings are informed by the attribute of judicial power.

It cannot be disputed that there is no strict demarcation or separation of powers in India unlike the position obtaining in the United States of America and Australia. The doctrine of separation of powers, has been eloquently expounded by Montesquieu in his work “The Spirit of Laws” and the basis on which it rests is the imperative need to avoid concentration of power in one or two organs. Undoubtedly, an observance of doctrine of separation of powers has been traced to the principle of equality.

Justice Y.V. Chandrachud, as His Lordship then was, speaking in Indira Nehru Gandhi v. Raj Narain & Ors. (1975) [3] held inter alia as follows:

“But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions.”

Separation of Powers is part of Basic Structure

Separation of powers as understood as prevailing in India constitutes a part of the basic structure of the Constitution of India (See His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another [1973])

In Indian Aluminium Co. and others v. State of Kerala and others (1996[4]), Supreme Court, while dealing with the alleged encroachment by the Legislature of the boundaries set by the Doctrine of Separation of Powers laid down, inter alia, as follows:

“(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them;

(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the legislature, executive and judiciary;

(3) In a democracy governed by the rule of law, the legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law.

(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries.

In order that the rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained.”

Do the superior courts make law?

Apart from the power to make subordinate legislation as a delegate of the Legislature, do the superior courts make law or is it entirely tabooed? In other words, when the court decides a lis, is the function of the court merely to apply law to the facts as found or do courts also make law? The theory that the courts cannot or do not make laws is a myth which has been exploded a long while ago. We may only in this regard refer to what Justice S.B. Sinha opined on behalf of supreme Court in the decision reported in State of U.P. v. Jeet S. Bisht (2007)[5]:

“77. Separation of powers is a favourite topic for some of us. Each organ of the State in terms of the constitutional scheme performs one or the other functions which have been assigned to the other organ. Although drafting of legislation and its implementation by and large are functions of the legislature and the executive respectively, it is too late in the day to say that the constitutional court’s role in that behalf is non-existent.

The judge-made law is now well recognised throughout the world. If one is to put the doctrine of separation of power to such a rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process.

78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless, there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times.

83. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today’s world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.”

Creative Judicial Activism

The court in ‘Anoop Baranwal v. UOI (2023)’ said that,

“Separation of powers is part of the basic structure of the Constitution of India. Equally, judicial review has been recognised as forming a part of the basic structure. Judicial review of legislation is expressly provided in Article 13 of the Constitution. A court when it declares a law made by the legislature as unconstitutional, if it be that, it is within its bounds, cannot be accused of transgressing the principle of separation of powers.

Declaring even a law made by the Parliament as unconstitutional forms a part of its powers. In view of the enunciation of the doctrine of basic structure in India unlike perhaps in most countries, even an amendment to the Constitution can be declared unconstitutional by the court. Such exercise cannot expose the court to the charge that it is not observing the limits set by the Constitution.

 While it may be true that the Constitution is supreme and all disputes must finally attain repose under the aegis of the Constitution, in one sense the final arbiter of what is the law must be the court. While it may be true that by removing the text forming the premise for a judicial verdict, the lawgiver may revisit the judgment, it is not open to the legislature to don the robes of a Judge and arrogate to itself the judicial function.

The theory of separation of powers in an ultimate analysis is meant to prevent tyranny of power flowing from the assumption of excess power in one source. Its value lies in a delicate but skilful and at the same time legitimate balance being struck by the organs of the State in the exercise of their respective powers. This means that the essential powers which are well understood in law cannot be deliberately encroached upon by any organ of the State.”

While talking on Judicial Activism, the court further said,

“Creative judicial activism has been a subject of both controversy reaching brickbats as also bouquets to the courts. Under the Constitution which clothes both citizens and persons with fundamental rights besides tasking the State with the achieving of goals declared in the Directive Principles, judicial activism as opposed to a mere passive role may be the much- needed choice. Judicial activism, however, must have a sound juridical underpinning and cannot degenerate into a mere exercise of subjectivism.

Judicial restraint may be a virtue in the elevated region of constitutional law. Being the grundnorm, it is indeed a rarefied field where the court must tread wearily. This Court indeed has admonished against the court itself running the Government.”

In Asif Hameed v. State of J & K,(1989)[6]  the court refers to the following observations of Frankfurter, J. in para 18:

“All power is, in Madison’s phrase, “of an encroaching nature”. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint…. Rigorous observance of the difference between limits of power and wise exercise of power — between questions of authority and questions of prudence — requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce.

No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do.

In the work “Judicial Activism” in India by SP Sathe, the learned author in the chapter ‘Legitimacy of Judicial Activism’ observes: –

“The realist school of jurisprudence exploded the myth that the judges merely declared the pre-existing law or interpreted it and asserted that the judges made the law. It stated that the law was what the courts said it was. This is known as legal scepticism and was really a reaction to Austin’s definition of law as a command of the political sovereign. According to analytical jurisprudence a court merely found the law or merely interpreted the law.

The American realist school or jurisprudence asserted that the judges made law, though interstitially. Jerome Frank, Justice Holmes, Cardozo, and Llewellyn were the chief exponents of this school. The Indian Supreme Court not only makes law, as understood in the sense of the realist jurisprudence, but actually has started ‘legislating’ exactly in the way in which a legislature legislates. Judicial lawmaking in the realist sense in what the Court does when it expands the meanings of the words ‘personal liberty’ or ‘due process of law’ or ‘freedom of speech and expression’.

When the Court held that a commercial speech (advertisement) was entitled to the protection of freedom of speech and expression, it was judicial law-making in the realist sense. Similarly, the basic structure doctrine or the parameters for reviewing the President’s action under article 356 or the wider meanings of the words ‘life’, ‘liberty’, and ‘procedure established by law’ in article 21 of the Constitution by the Supreme Court are instances of judicial law-making in the realist sense.

When, however, the Court lays down guidelines for inter-country adoption, against sexual harassment of working women at the workplace, or for abolition of child labour, it is not judicial law-making in the realist sense these are instances of judicial excessivism that fly in the face of the doctrine of separation of powers.

The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere and is impracticable. Broadly it means that one organ of the State should not perform a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as ‘due process of law’, ‘equal protection of law’, or ‘freedom of speech and expression’ is a legitimate judicial function, the making of an entirely new law, which the Supreme Court has been doing through directions in the above-mentioned cases, is not a legitimate judicial function.

True, the Court has not supplanted but has merely supplemented the legislature through such directions. It has said in each case that it legislated through directions only because no law existed to deal with situations such as inter-country adoption or sexual harassment of working women and that its direction could be replaced by legislation of the legislature.”

The judge as a legislator- by Benjamin N. Cardozo

In the work, “The Nature of the Judicial Process” by Benjamin N. Cardozo, in the lecture, “The Method of Sociology – The Judge as a Legislator.” Justice Cardozo observes under the following subject: –

“…No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without travelling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art. Even within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law. …The process, being legislative, demands the legislator’s wisdom.

…Customs, no matter how firmly established, are not law, they say, until adopted by the courts. Even statues are not law because the courts must fix their meaning. That is the view of Gray in his “Nature and Sources of the Law.”

“The true view, as I submit,” he says, “is that the Law is what the Judges declare; that statues, precedents, the opinions of learned experts, customs and morality are the sources of the Law.” So, Jethro Brown in a paper on “Law and Evolution,” tells us that a statue, till construed, is not real law. It is only “ostensible” law, Real law, he says, is not found anywhere except in the judgment of a court… ..They have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful.. ..The judge, even when he is free, is still not wholly free.

He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.”

Judicial Activism on the part of Indian Supreme Court

Close to the aspect of separation of powers, is controversial subject of judicial activism. In the work “Judicial Activism, Authority, Principles and Policy in The Judicial Method” by Hon’ble Justice Michael Kirby, we find of particular interest, the following:

“The acute needs of the developing countries of the Commonwealth have sometimes produced an approach to constitutional interpretation that is unashamedly described as “activist”, including by judges themselves. Thus in India, at least in most legal circles, the phrase “judicial activism” is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by many – including many judges and lawyers – as an abdication of the final court’s essential constitutional role. One instance may be cited from Indian experience: the expansion of the traditional notion of standing to sue in public interest litigation.

The Indian Supreme Court has upheld the right of prisoners, the poor and other vulnerable groups to enlist its constitutional jurisdiction by simply sending a letter to the Court. This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks. Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other aspects. However, he went on:

“…I soon realised that if that Court was to perform its essential role in Indian society, it had no option but to adopt the course it did and I congratulate it for the courage it has shown.”

In ‘Anoop Baranwal (supra)’, the court said that,

“Unlike demands of a formal democracy, the hallmark of a substantive democracy and if we may say so, a liberal democracy must be borne in mind. Democracy is inextricably intertwined with power to the people. The ballot, is more potent than the most powerful gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner. Elections can be conflated with a non- violent coup capable of unseating the most seemingly powerful governing parties, if they do not perform to fulfil the aspirations of the governed.

Democracy is meaningful only if the sublime goals enshrined in the preamble to the Constitution receive the undivided attention of the rulers, namely, social, political and economic justice. The concepts of liberty, equality and fraternity must not be strange bedfellows to the ruling class. Secularism, a basic feature of the Constitution must inform all actions of the State, and therefore, cannot be spurned but must be observed in letter and spirit. Democracy can be achieved only when the governing dispensation sincerely endeavours to observe the fundamental rights in letter and spirit. Democracy also, needless to say, would become fragile and may collapse, if only lip service is paid to the rule of law.

We cannot be oblivious to the fact that the founding fathers have contemplated that not only must India aspire for a democratic form of government and life but it is their unambiguous aim that India must be a Democratic Republic. The conventional definition of a ‘Republic’ is that it is a Body Polity, in which, the Head of State is elected. However, the republican character of our democracy also means that the majority abides by the Constitution ensuring rights granted under it and also pursues goals enshrined in it.

A brute majority generated by a democratic process must conform to constitutional safeguards and the demands of constitutional morality. A Democratic Republic contemplates that majoritarian forces which may be compatible with a democracy, must be counter balanced by protection accorded to those not in the majority. When we speak about the minority, the expression is not to be conflated with or limited to linguistic or religious minorities. These are aspects which again underly the need for an independent election commission.

It may be true that the resort to courts is not a remedy for all ills in a society. We are equally cognizant that the courts must not try to run a Government nor behave like emperors. We also take notice of the following words of this Court in Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another, (2007) where the merit of exercising judicial restraint has been emphasized.

“33. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter- branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism’s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilises the judiciary so that it may better function in a system of inter-branch equality.”

“34. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.”

“38. The moral of this story is that if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realising that in a democracy many matters and controversies are best resolved in non-judicial setting.”

However, we may also listen to the following words.

“39. We hasten to add that it is not our opinion that judges should never be “activist”. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the US Supreme Court vide Brown v. Board of Education [347 US 483 : 98 L Ed 873 (1954)], Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)], Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)] , etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.”

A Constitution Bench Judgment reported in State of T.N. v. State of Kerala and another [7]summarised its conclusions on the constitutional principles relating to separation of powers as follows:

126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs— legislature, executive and judiciary.

In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers.

126.2. Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.

126.3. Separation of powers between three organs—the legislature, executive and judiciary—is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution.”


Anoop Baranwal v. Union of India, (2023)

[1] AIR 1967 SC 1643 (1984) 3 SCC 161

[2] (1997) 10 SCC 549

[3]  (1975)

[4] 1996 AIR 1431

[5] (2007) 6 SCC 586

[6] AIR 1989 SC 1899

[7] (2014) 12 SCC 696