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Daily Editorials

Separation of Power: Judiciary v. Executive

Are courts encroaching on the powers of the executive?


The courts are increasingly intervening in matters without providing sound legal reasoning.

Recently Supreme Court stayed the implementation of three controversial farm laws passed in September 2020 and

Ordered the constitution of a committee of experts to negotiate between the

  • Farmers’ bodies and
  • Government of India.

Issue: Rather than deliberating on the constitutionality of the three laws, the court appears to be trying for a political settlement which is domain of the government.



  1. Federalism
  2. Agriculture as state subject
  3. Manner in which the voice vote was passed in the rajya sabha, which was controversial.

Protests as Citizen’s F.R.:  Judiciary viewed the protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution.

Precedent of the Maratha reservation: The court gave the precedent of the Maratha reservation case in which it had issued a stay, but in that instance, the stay was given on constitutional grounds (Indra Sawhney Case- 505 Quota Ceiling).

Legislative competence of Parliament: The petition filed by the Bharatiya Kisan Party argues that under our constitutional scheme, agriculture and farm produce are matters reserved under entries 14, 18, 30, 46, 47 and 48 of List II (State List) of the Seventh Schedule to the Constitution.

  • The argument is that the Centre simply could not pass the farm bills as it did not have legislative competence.

Court’s competence to stay Laws: Courts are, of course, competent to issue stay orders on parliamentary laws, but they need to set out legal reasons.


No body asked Court: What’s really striking here is that nobody asked the court to intervene in this particular manner, to break the deadlock.

Petitions to Court: One is challenging the constitutionality of the laws and the others are with regard to the protests. None of them ask the court to negotiate between the two parties.

Precedent of the Maratha reservation: The court gave the precedent of the Maratha reservation case in which it had issued a stay, but in that instance, the stay was given on constitutional grounds (Indra Sawhney Case- 505 Quota Ceiling).

  • Here it does not take up any such constitutional issues though these issues have been pleaded before the court by the farmers associations.

Legal grounds of challenge: The court does not even set out clearly what the legal grounds of challenge are.

To Assuage Hurt Feelings of Farmers: Court is also of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.”

  • Now, this is a strange reason and arguably not a sound legal reason.

Tractor Rally as ‘law and order’ issue: In a different but related case, the Supreme Court told the Delhi Police that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and that it is for the police to deal with.


Different Approach in CAA, NRC, A-370: There are issues central to Indian politics which are extremely politically controversial such as

  1. Change to Article 370,
  2. Citizenship (Amendment) Act,
  3. Reservation quotas for economically weaker sections,
  4. Electoral bonds, and,
  5. ‘love jihad’ laws

What is striking is that the court has shown no urgency in hearing any of them and has refused to pass a stay order in all of these cases.

Intervention in sensitive issues: On the other hand, the court has very much intervened in matters that are extremely controversial, such as Ayodhya case, if it is determined to do so.

Abdicating its constitutional responsibility: So, what we see is that the court is actually abdicating its constitutional responsibility of judicial review. At the same time, it’s acting in usurpation of executive and legislative powers, going beyond the standard areas of judicial behaviour.

Judicial overreach: It is a phenomenon that has been observed in multiple contexts in various countries. Historically speaking, the idea that judges can exercise review powers to overturn laws enacted by democratically elected governments and Parliaments is of fairly recent origin.

  • It is only in the post-World War II era that this idea has become dominant around the world.

Constitutional issues in Cold Storage: In all the recent cases, where legal and constitutional questions were raised, the court simply has not taken on those questions, and has put them in cold storage, often for years at a time.

Legitimacy of Court’s intervention: Rather than choosing legal and constitutional issues, court is intervening in less relevant cases, leading to questions about the legitimacy of its intervention.  

SC from Conservative to Radical Phase: In the initial period it was a more conservative court and then it became more radical over time.

  • But even In conservative period and the big-ticket political issues that came its way such as land reforms, reservations, the use of Article 356, bank nationalisation, privy purses etc., It adjudicated pretty promptly.  


Legal vacuum case in South Africa: In South Africa, there is an interesting provision in their Constitution that enables courts to enter into a dialogue with legislators to prevent a situation of a legal vacuum.

No parliamentary sovereignty In India: Framers of our Constitution gave courts the important power to strike down parliamentary laws.

  • Over time, courts have used this power to check the power of the executive, while also extending their own authority.
  • Example: Taking down the power of imposition of President’s rule under Article 356 (S.R. Bommai v. Union of India).

World’s most powerful court: So, these are some of the trends that led to the Indian Supreme Court being described routinely as the world’s most powerful court, from about the 1980s till about 2015.

Source: The Hindu

Death Penalty and Mercy petitions


Balwant Singh Rajoana, former Punjab Chief Minister Beant Singh’s assassin, was sentenced to death in 2007 by a special CBI court.

His mercy petition was filed by the Shiromani Gurudwara Prabhandhak Committee in 2014.

Humanitarian gesture by MOHA: In 2019, the Ministry of Home Affairs sent a letter to the Punjab government to commute Rajoana’s death sentence. It said it had taken an “in principle” decision to commute the death sentence as a “humanitarian gesture” ahead of the 550th birth anniversary celebrations of Guru Nanak Dev.

But its decision could not be implemented because the Cabinet did not send the file to the President.

Rajoana has been incarcerated for over 25 years. The Supreme Court pulled up the government for its laxity and fixed the next hearing for sometime in January 2021.

                                      Quotes about Death penalty support (28 quotes)


India in World: India figures among the 56 nations in the world that have retained the death penalty.

  • While 142 have abolished it either by practice or by law.

Amnesty International: According to Amnesty International,

  • China- 1000+
  • Iran- 253
  • Saudi Arabia- 149
  • Total In World: 2018-993, 2019-690, decreasing trend world wise


President of India (Articles 72) or the Governor of the State (161) deals with mercy petition.

Article 72(1): The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.


1. Shatrughan Chauhan vs Union of India case: Delay in deciding mercy plea is a relevant ground for commuting the death sentence to life imprisonment.

2. Kehar Singh v Union of India, 1988: SC held that the grant of pardon by the President is

  • An act of grace and, therefore,
  • Cannot be claimed as a matter of right

3. Bachan Singh (1980): Death penalty should be awarded only in the rarest of rare cases.

4. Maru Ram v Union of India: All public power, including constitutional power, should not be exercised arbitrarily or mala fide.

5. Dhananjoy Chatterjee case 1994: Supreme Court has said that “The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own.”

6. Epuru Sudhakar case 2006: Supreme Court held that clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace.


1. Against the canons of justice: The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice.

  • Delay coupled with long years prison confinement leads to psychological trauma.

2. Delay by System: Delays in investigations, court hearings and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.

3. No. in India: In India, 102 convicts were awarded the death sentence in 2019, raising the total number of death row prisoners to 378.

  • Death row convicts have suffered imprisonment up to 25 years.

4. Revival of Death Penalty: In 2019, the Sri Lankan government put an end to its four-decades-long moratorium on capital punishment.

  • President Maithripala Sirisena ordered the execution of four drug offenders. He claimed that the move would end the addiction problem in the country.

5. Debate in Rajya Sabha: A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote.

6. Government’s Stand: Then Minister of State for Home Affairs, Kiren Rijiju, stated that the government was not contemplating abolition of the death penalty.


1. Humanitarian gesture by MOHA: In 2019, the Ministry of Home Affairs sent a letter to the Punjab government to commute Rajoana’s death sentence. It said it had taken an “in principle” decision to commute the death sentence as a “humanitarian gesture” ahead of the 550th birth anniversary celebrations of Guru Nanak Dev. We need to continue such gesture.

2. India need to review its stand: The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment. The debate on the efficacy of the death penalty in reducing crime has been going on for several decades.

3. President Pranab Mukherjee’s swift action: He dealt with the petitions swiftly. It goes to the credit of former President Pranab Mukherjee that during his term, he

  • Disposed of 34 mercy petitions,
  • While 30 were rejected,
  • Four were given reprieves.

4. Time frame needs: A time frame needs to be fixed for the President to dispose of mercy petitions.

5. Lack of accountability: The lack of accountability of government and the courts have adversely affected our criminal justice system.

6. Law Commission, 2015: Through its report in 2015, the Law Commission of India proposed abolishing the death penalty.

  • Just 14 States responded by 2018. Of these, 12 States rejected the proposal.

7. UNGA-2007-Resolution: -Adopted Resolution for abolition of capital punishment- It endorsed worldwide moratorium on death penalty.

8. Justice Verma Committee: Recommended No death Penalty for Rapists.

Source: The Hindu