This year has seen one of the biggest battles fought between two of the largest institutions established under the Constitution of India - the Judiciary and the Executive. Though this phenomenon is nothing new, it has reached a new level. Recently, the High Court of Uttarakhand quashed the imposition of President’s rule in the State as unconstitutional, making it null. Just a week before this judgment, the Supreme Court of India advised state governments in India about appointing Government counsels. They reiterated that the Judiciary will interfere with all ‘State actions’, review them judicially and set them aside if they are found arbitrary.
So what’s up with these big institutions in India? What are their powers? Most know little or nothing about it.
The State has three functions – Executive, Legislative and Judicial. The Indian Constitution provides for Separation of these powers subject to certain exceptions. In any form of Government, the Legislative wing (Parliament and the State Legislatures in the Indian context) enacts the law. The Executive (bureaucrats and other officers of the Government run by the Council of Ministers headed by the PM/CM) execute them and lay down policies of governance. The Judicial wing (Courts) interpret the laws, applies them to disputes/facts before them and settles such disputes.
Quite often, the Prime Ministers of India from the times of Nehru have advised the Judiciary not to cross the Lakshman Rekha - the line that separates the powers and functions of Executive and the Judiciary. But how in India does the Judiciary manage to be this activistic?
India has a written Constitution which lays down the pattern and scheme of Governance. It is from the Constitution that all institutions derive their powers and authority. Since the Judiciary has the power to interpret laws, it is also armed with the power to interpret the Constitution. It can see to it that no ‘State authority’ does anything beyond the scope of its powers. So when the Executive and the Legislative wings of the Government act beyond the scope of their powers, the Judicial wing interprets the Constitution and sets such actions aside.
It goes even further. The High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution can enforce any Fundamental Right. This means that even if it’s not about any specific action of the Executive or Legislature, the Constitutional Courts in India pass appropriate orders if the Fundamental Rights guaranteed under the Constitution are infringed upon.
So for example, in Murli Deora vs. Union of India, 2002, the Supreme Court directed the Government of India to enact an appropriate law to make smoking in public an offence since it affects the fundamental Right to Life of non-smokers. So the Cigarettes and Other Tobacco products (prohibition of advertisement…) Act, 2003 was enacted making smoking in public a punishable offence. In National Legal Services Authority vs. Union of India, 2014 the Supreme Court had to give a set of directions to the Government in order to safeguard the Fundamental Rights of the ‘Third Gender'. It provided them all public facilities as enjoyed by the Male and Female genders. In PUCL Vs. Union of India, it went a step ahead and made “None of the Above” available in voting machines since every citizen of India has Right to Freedom of Expressing his choice during elections.
But the Parliament has the power to amend the constitution. Nehru’s Government in 1951 inserted Schedule IX to the Constitution of India by an amendment. It made all laws listed under the Schedule IX outside the scope of the Judiciary’s review. so whenever the Parliamrnt enacted a law, it was placed under Schedule IX so that Judiciary could not review it. Similarly, in 1971 the Parliament inserted a clause to Article 13 excluding Constitutional amendment laws from the scope of Judicial review. From then the Parliament could make any politically motivated amendment to the Constitution but the Judiciary could do nothing about it.
To put an end to these politically motivated practices of the Executive, the Supreme Court in Kesavananda Bharati vs. State of Kerela, 1973 propounded the theory of ‘Basic Structure’ of the Constitution. It declared that no State action shall infringe upon certain basic features of the Constitution of India. The Judiciary could then review even Constitutional amendments and Schedule IX laws to see if they violated the basic features of the Constitution of India.
With this protection, the Executive had to look for another way to curb the Judiciary. The Constitution empowers the President of India to appoint judges in consultation with the Chief Justice of India. So Indira Gandhi tried to twist the hands of the Judiciary by interfering with the appointment of judges of High Courts and the Supreme Court. Since under the the Constitution the President shall act in accordance to the aid and advice of the Council of Ministers headed by the Prime Minister of India, attempts were made to politically revenge Judges by interfering with their appointments and elevations. So judges who were less favourable to the Government were denied elevations from High Courts to Supreme Court, and from a Puisne Judge of the Supreme Court to the Chief Justice of India.
But judicial wisdom never permitted the Judiciary to be subordinate to the other two political institutions in India. In S.P Gupta vs. Union of India  1982 and the subsequent ‘Judges Appointment’ cases, the Supreme Court introduced the collegium system of appointment of Judges. The expression "in consultation with the Chief Justice of India" was interpreted to mean "in concurrence with the Collegium of 4 Judges headed by the CJI". Even when the incumbent NDA Government amended the provision to replace the collegium system by establishing the National Judicial Appointments Commission (NJAC), the Supreme Court struck that down in 2015 as unconstitutional as it offended the basic feature of an ‘Independent Judiciary’.
How is India's judiciary so sensitive to any action that curbs it power? The provisions relating to the Judiciary in the Constitution are adopted with modifications from the US Constitution.
They say that the Supreme Court of US is the most powerful in the world. George W. Norris once quoted: “We have a legislative body, called the House of Representatives, of over 400 men. We have another legislative body, called the Senate, of less than 100 men. We have, in reality, another legislative body, called the Supreme Court, of nine men; and they are more powerful than all the others put together.”
However, in the Ex-parte Merrymen case (popularly called the Habeous Corpus case) the Supreme Court declared the detention of Abraham Lincoln’s political rivals as unlawful. But in a bloody blow to the Supreme court, the Government refused to execute the judgment.
Keeping this in mind, the framers of the Indian Constitution were cautious to not let this happen. They enacted Article 144 of the Constitution which provides that the Civil and Judicial authorities shall act in aid of the Supreme Court. Article 142 provides for enforcement of orders and decrees of the Supreme Court of India. In my opinion, it is the Supreme Court of India that is most powerful in the world.
So the fight for supremacy between the Judiciary and Executive continues, with each trying to get the upper hand over the other. Will this battle ever end?