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Daily Editorials

Separation of Power: Judiciary v. Executive

Are courts encroaching on the powers of the executive?

Context:

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.

WHY JUDICIAL INTERVENTION IS JUSTIFIED:

THE ISSUES ARE OF:

  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.

JUDICIAL ENCROACHMENT AND GROWING TREND:

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.

CHALLENGES AND CONCERNS:

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.  

WAY FORWARD:

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