Has the Indian Supreme Court Blurred Separation Of Powers?

The doctrine of the separation of powers requires that the three principal organs of State – that is the executive, the legislature and the judiciary – should be clearly divided in order to safeguard citizens’ liberties and to guard against governmental tyranny.

One of the earliest and clearest statements of the separation of powers was given by the infamous social commentator and political thinker Montesquieu at the beginning of the French Revolution in 1748:
‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of the judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.’

Therefore, according to the strict interpretation of the separation of powers, none of the three branches may exercise or interfere with the power of the other, nor should any person be a member of any two of the branches. For instance, only by creating three separate institutions is it possible to have a robust system of democratic checks and balances between them.

The Constitution of India does not expressly provide for the separation of powers. Unlike the Constitutions of the US and Australia. However, it still recognises and incorporates the doctrine of the separation of powers between the three principal organs of State. Therefore, whilst no formal or codified lines have been drawn between them, it is widely recognised and accepted that the doctrine of the separation of powers ‘runs through’ the Constitution of India.

Furthermore, there is often an overlap in the scope of the functions of the three branches. Primarily, owing to the parliamentary form of colonial Government in India. In other words, the dividing line between the executive and the legislature is naturally rather a fine one. Nevertheless, under India’s Constitution, the executive can legislate using:

The ordinance making powers of the President and the governors; and delegate executive legislation.

The legislature also exercises some form of control over the judiciary in that it can legislate on the Constitution itself, the jurisdiction and powers of the criminal and civil courts and it can also impeach judges when they are found to be acting or to have acted ultra vires (outside of their jurisdiction).

The judiciary has wide powers to review and strike down unconstitutional executive and legislative decisions and actions. However, the legislature can make such rulings ineffective by amending the law while staying within the constitutional limits. This concept is known as ‘legislative overruling’ and is a prime example of the inherent checks and balances under the Constitution which further strengthen the separation of powers in India.

Moreover and despite the fact that the three branches interconnect and have functional overlaps, the Indian judiciary has recognised the doctrine of the separation of powers as a fundamental feature of the Indian Constitution and an essential principle underpinning the rule of law.

During the course of a recent hearing relating to the Three Farm Laws, the Indian Supreme Court reportedly observed that it has the jurisdiction to stay the implementation of parliamentary legislation and did in fact go on to direct an interim order to that effect. In other words, a judicial order that prevents the executive or the legislature from implementing the Three Farm Laws into India’s domestic legislation.

However, this decision was taken despite the Supreme Courts own reasoning or judicial guidance laid down in the landmark case of Divisional Manager Aravali Golf Course v Chander Haas 2007. In which it was stated:
‘Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. 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.

Therefore, the Supreme Court has specifically stated that judges must exercise judicial restraint and must not encroach on the jurisdictional capabilities or legislative actions of the legislature or the executive. In other words, the Supreme Court has previously declared that there is a broad separation of powers in India’s Constitution and that each primary organ of the State must remain within its limits and not intrude on the domain or jurisdiction of another.

Therefore, it follows that when the Indian Parliament enacted the Three Farm Laws in September 2020 Parliament was and remains the only organ of State who could repeal the laws or suspend their operation by enacting alternative legislative provisions. However and as previously mentioned, the Supreme Court can declare parliamentary legislation ultra vires if it finds it to be unconstitutional, but it has no jurisdiction to temporarily stay its enforcement without recording a judicial finding that it is on prima facie examination (at first glance) unconstitutional . Therefore, as no such finding has been made in the case in hand, this action cannot be said to amount to anything less than either a monumental demonstration of support on behalf of the judiciary for the plight of India’s small farmers, or a wholly unconstitutional and undemocratic judicial act which in turn should be immediately redressed.

Nevertheless, another fault line that could emerge from the Supreme Court’s intervention stems from the appointment of a four member committee headed by a retired Supreme Court judge ‘for the purpose of listening to the grievances of the farmers and the views of the government and to make recommendations’. However, the Supreme Court has previously set up similar committees, delegating some of its powers to committee members to implement or oversee specific laws or an order of the court. For instance, in 2017 the Supreme Court directed the establishment of family welfare committees whose mandate would be to assess complaints of domestic violence before they were investigated by the police. However, this decision attracted widespread criticism and was eventually rolled back. Nevertheless, a committee working to alleviate the pressures and restraints on India’s police force is one thing but a committee recommending whether three pieces of primary legislation must be stayed or repealed is another thing entirely and caution must be paid to the unconstitutionality of it all.

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For instance, whilst the Supreme Court’s decision clearly reflects the legitimacy of the ongoing farmer protests – the Supreme Court would not have issued an interim order if it considered the farmers legal case against the Government to be wholly without merit. If appropriate caution is not exercised by the Supreme Court Judges this judicial decision could have far reaching negative implications for India’s future democratic governance and the rule of law. In other words, public confidence in the judiciary and in the Government is inevitably going to be affected as India’s population begins to lose faith in the sanctity of Parliaments legislative authority.

Perhaps the Supreme Courts objective was to break the ongoing deadlock between the farmers and the Government. For instance, do not forget that prior to the week commencing the 01 December 2020 PM Narendra Modi and his majority government had failed or refused to consult or to negotiate with the farmers and the farmer leaders – a decision which in itself amounts to a clear violation of Articles 2, 10, 11 and 15 of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas 73/165 (UNDROP) (of which India is signatory) and various other primary instruments of international law. For more information on this point please see Sikh Human Rights Group working paper entitled Applicable International Treaties, Conventions and Regulations Re: India’s Agricultural Crisis.

Nevertheless, Sikh Human Rights Group respectfully submits that the Supreme Court judges must quickly come to the realisation that the judiciary cannot single headedly resolve the issues surrounding the Three Farm Law and must concurrently declare the Three Farm Laws unconstitutional whilst refraining from trespassing on the inherent jurisdiction of the legislature and the executive. 

For instance, according the Articles 253 and 254 of the Constitution, the power to ratify international Treaties and Conventions is vested with the Government (executive) and there is no need to place the Treaty or Convention before Parliament (legislature) even if the Treaty or Convention has monetary obligations. Therefore, international intergovernmental agreements to uphold the provisions of specific international Treaties and Conventions, such as the UNDROP, are actionable or the provisions are actionable in India’s domestic courts without express Parliamentary legislation to that effect.

Therefore, as Article 9(3) of the UNDROP provides that:
‘States shall take appropriate measures to encourage the establishment of organizations of peasants and other people working in rural areas, including unions, cooperatives or other organizations, particularly with a view to eliminating obstacles to their establishment, growth and pursuit of lawful activities, including any legislative or administrative discrimination against such organizations and their members, and provide them with support to strengthen their position when negotiating contractual arrangements in order to ensure that conditions and prices are fair and stable and do not violate their rights to dignity and to a decent life’.

In SHRG opinion this provision clearly provides the Supreme Court with legitimate grounds to declare the Three Farm Laws ‘unconstitutional’ as Article 21 of the Constitution specifically states that ‘no person shall be deprived of his life or personal liberty’.Which in turn has previously been held by the Supreme Court to encompass a constitutional right to earn a livelihood or a decent standard of living. For example, in the case of Olga Tellis v Bombay Municipal Corporation (1986) it was stated by the presiding Supreme Court judges that:
‘The question which we have to consider is whether the [constitutional] right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 [of the Constitution] is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence… That is but one aspect of the right to life an equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood’.

By Mr Carlos Arbuthnott

(The writer is a Master of Laws in international human rights and Human Rights Officer with the Sikh Human Rights Group. Views expressed are personal)

‘Traffic At Shaheen Bagh A Mess But A Small Price For…’

Mohammad Atif, a 24-year-old M Tech student who stays in Shaheen Bagh, says the cause to save our Constitution is bigger than the minor inconvenience for the local commuters in the locality

I belong to Lucknow but have been staying in south Delhi’s Shaheen Bagh area for several months at my cousin’s house. I came here to complete my M. Tech dissertation which coincided with the eruption of Jamia protests and the aftermath. And what a time it has been to be in Shaheen Bagh!

I had to visit my institute in South Delhi daily when the protests were in full swing. I did have to take a longer route to reach because of the arterial 2.5 km stretch at Shaheen Bagh being closed. The protest site isn’t disturbing people as much as the excessive blockades /barriers put in place by the administration even when some feel they are not needed.

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Even newspapers/websites are now reporting that a few of the alternative routes didn’t even need to be blocked and is causing problems to people unnecessarily, especially those travelling to and from Noida, Sarita Vihar, Kalindi Kunj, Jamia, and an alternative route to Faridabad.

Indeed travelling into and out of Shaheen Bagh is even more cumbersome for a daily commuter. For me too, with petrol prices remaining consistently high, travelling the extra stretch to reach my institute on a bike has increased the budget for sure, though not considerably.

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Many people who earlier used to get picked up and dropped at their respective houses for their offices in Noida now have to take the Metro as the cabs can’t enter inside Shaheen Bagh. This might be a difficult thing, especially for women who get dropped during the night. Moreover, travelling in the Metro also cause a dent in many people’s pockets. Middle class might not feel the pinch as much, but the lower income group for whom every penny is important, is finding it more difficult.

However, most locals are considering it as their contribution to nation-building and don’t mind suffering a little bit if the protest makes their voices reach the powers that be. Ambulances and school buses are moving easily though.

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The protest site is near the commercial hub of Shaheen Bagh, so many a shop, outlet etc. have been closed for two months now. It is affecting the livelihoods of people, but again they feel that they are contributing in saving the Constitution and all that it stands for. We just hope that a solution is reached soon and the government initiates a dialogue with the protesters.

There are a few residences near the protest site and I wonder how they are handling all the sounds from loudspeakers day in and day out, though I have been told and have witnessed too ke protest bahut tameez se ki ja rahi hai. Poora khayal rakha ja raha hai ke kisi ko koi pareshani na ho (The protests are being done in a very nice manner and care is being taken that nobody suffers because of the protests).

‘Shaheen Bagh Inspired Kadru Bagh In Ranchi’

Khushboo Khan, 32, explains how she used her HR skills to recreate a Shaheen Bagh-like site in Ranchi’s Kadru area where women have been holding sit-in protests since January 19

Ranchi is a small city when compared to Delhi or Kolkata. Women here are also a little inhibited in coming out on street to protest. However, people have realised that this is a momentous time when one needs to show the courage to speak up. Ab nahi bolenge, to kab bolenge? (If not now, then when will we speak up?)

Therefore, inspired by the brave women from Shaheen Bagh, our committee, named Hum Bharat Ke Log (We, the people of India) started to come out and register our protest against Citizenship Amendment Act and National Register of Citizen. Our protest began on January 19, at a small ground near Haj House in Kadru area. As we are growing in strength, we have named it Kadru Bagh, so that people know our resolve is as strong as that of our sisters from Shaheen Bagh.

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We are protesting against CAA-NRC not only on the grounds that it is discriminatory, but also because we believe that our country isn’t equipped to take on any more people from outside and be able to give them job opportunities, health benefits etc. For, our own countrymen are not getting jobs, access to good health, transport facilities etc. We have slid down as a country on various indices, right from economic growth to women’s safety (a huge issue in Jharkhand), to food safety etc., but the government is busy trying to create a rift between communities to hide their failures.

I worked as a human resource professional for many years before I decided to quit and launch an NGO called ‘She’ that imparts vocational training to women. I must admit that my HR skills came handy in leading this protest against the divisive CAA-NRC. I have been coming here every day for 12 hours and with each passing day people are attending in huge numbers. We are braving 4-5 degree Celsius temperature and some of the protesters are having health issues too but we are ready to risk everything to be heard.

ALSO READ: With CAA, Modi Has Woken Up A Sleeping Tiger

Ever since this (BJP) government came to power, we as Muslims have been at the receiving end of communal taunts, snide remarks and insulting messages. We remained silent at many instances when our community was directly targeted: the Triple Talaq law, abrogation of Article 370 in Kashmir and the court verdict on Ayodhya. But we decided to break our silence when Citizenship Bill was passed because we saw this an attack on the Constitution and constitutional rights of the people.

It is heartening to see common people from all religions protesting against CAA-NRC, because frankly everyone can read between the lines when it comes to this government.  Human beings are losing precious lives and peace in this situation. This government knows only raj (to rule) and not neeti (policies). It must learn to engage with people sincerely. The media must also help the government in its engagement with the people. For now, Shaheen Bagh has shown us the way, and we are going to follow the path of truth sincerely and tirelessly.

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