Separation of powers, judicial review and activism

The first principle

Power that is held in one pair of hands will sooner or later be abused, so a free constitution divides it: one organ makes the law, another carries it out and a third decides disputes under it. India accepted this idea but not in its pure form. Its parliamentary system fuses the executive with the legislature, so liberty is protected less by walls between the organs than by the checks each organ can apply to the others, and the sharpest of those checks is judicial review.

The core

From Montesquieu to India

• The classical doctrine. Montesquieu argued in The Spirit of the Laws (1748) that liberty is lost when the power to make, execute and judge laws is united in the same person or body. The United States Constitution comes closest to this ideal, with a President who is not a member of Congress and courts that stand apart from both.
• No strict separation in India. Ministers sit in Parliament and are responsible to it, the President can legislate through ordinances, and Parliament judges its own privileges. In Ram Jawaya Kapur v State of Punjab (1955) the Supreme Court said the Constitution has not recognised separation of powers in its absolute rigidity, but has sufficiently differentiated the functions of each organ.
• Functional separation as a basic feature. Article 50 asks the state to separate the judiciary from the executive, and Articles 121 and 122 keep courts and Parliament out of each other's internal working. Kesavananda Bharati (1973) listed separation of powers among the basic features, and Indira Nehru Gandhi v Raj Narain (1975) applied it to strike down a clause of the Thirty ninth Amendment that had Parliament deciding an election dispute, which is a judicial function.
• Checks and balances. The Indian design therefore rests on overlapping powers that restrain one another: Parliament controls the executive through questions, motions and the budget; the executive shapes the judiciary through appointments and controls the House through its majority; and the judiciary reviews the actions of both.

Judicial review

• Its basis. Article 13 declares void any law inconsistent with Fundamental Rights, Article 32 lets a citizen move the Supreme Court directly to enforce them, and Article 226 lets High Courts issue writs for Fundamental Rights and "for any other purpose".
• Its status. In L. Chandra Kumar v Union of India (1997) a seven judge bench held that the power of judicial review under Articles 32 and 226 is part of the basic structure, so no law or amendment can take it away.
• Its limits. Courts test the validity of a law, not its wisdom. They examine legislative competence, conformity with Fundamental Rights and other provisions, and, for amendments, the basic structure, but they do not ask whether a better policy was available.

Dimensions

Judicial activism and public interest litigation

Judicial activism is the use of judicial power to fill gaps left by the other organs, and public interest litigation (PIL) is its main instrument. A PIL lets any public spirited person approach the court on behalf of those who cannot do so themselves.

• Legitimacy after the Emergency. The Court's ruling in Additional District Magistrate, Jabalpur v Shivkant Shukla (1976), that no one could go to court to enforce the right to life during the Emergency, damaged its standing; in the years after 1977 judges such as P. N. Bhagwati and V. R. Krishna Iyer used PIL to rebuild trust by reaching out to the poor.
• Relaxed locus standi. In S. P. Gupta (1981) the Court held that any member of the public acting in good faith can seek relief for a person or class unable to approach the court because of poverty or disability.
• Epistolary jurisdiction. Letters and even newspaper reports were treated as writ petitions. In Bandhua Mukti Morcha v Union of India (1984) a letter about bonded labourers in stone quarries near Delhi became a case that defined the state's duty to identify, free and rehabilitate them.
• Executive failure. Where governments did not enforce existing laws on prisons, pollution or labour, courts stepped in, and the expanding reading of Article 21 gave them the rights to enforce.

Is the Indian Supreme Court the world's most powerful?

• The case for. It can strike down constitutional amendments under the basic structure doctrine, a power few courts in the world claim. It effectively chooses its own members through the collegium, its power under Article 142 to do "complete justice" lets it issue orders no statute provides for, as in the 2019 Ayodhya verdict that directed land for a mosque, and through PIL and suo motu cases it supervises areas from forests to prisons.
• The case against. Over five crore cases are pending across the court system, which limits the practical reach of judicial power. Its orders depend on the executive for enforcement, as the uneven compliance with the police reform directions shows, and it is itself bound by the Constitution and by the review that larger benches apply to smaller ones.

In practice

Judicial legislation

Judicial legislation is the laying down by a court of binding rules where the legislature has not acted, usually as guidelines that hold "until a law is made".

• Vishaka v State of Rajasthan (1997). In the absence of a law on sexual harassment at the workplace, the Court framed guidelines drawing on the Convention on the Elimination of All Forms of Discrimination Against Women. They held the field until Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• D. K. Basu v State of West Bengal (1997). The Court laid down requirements for every arrest, such as a memo of arrest, informing a relative and medical examination, many of which were later written into the Code of Criminal Procedure.
• Prakash Singh v Union of India (2006). Seven directions on police reform, including a State Security Commission, a minimum tenure for the Director General of Police and separation of investigation from law and order, which most states have adopted only partly.
• Aruna Shanbaug v Union of India (2011). The Court allowed passive euthanasia, the withdrawal of life support, for patients in a permanent vegetative state, subject to approval by a High Court.
• Common Cause v Union of India (2018). A five judge bench held that the right to die with dignity is part of Article 21 and recognised the living will or advance directive, with a procedure involving medical boards and a magistrate. In January 2023 the Court simplified this procedure because the original steps had proved too cumbersome for anyone to use.

Justification and objection

• The justification. Guidelines sought through PIL fill a legislative vacuum when rights are being violated now and Parliament may take years to act. Article 32 is itself a Fundamental Right, so a court that refused a remedy because no law existed would fail its own duty, and in most cases Parliament later adopted the substance of the guidelines.
• The objection. Courts lack the expertise, consultation and accountability of the legislature, their guidelines cannot be debated or amended by elected members, and they often prove hard to implement. In Divisional Manager, Aravali Golf Club v Chander Hass (2007) the Court itself warned that judges must know their limits and must not try to run the government.

Environmental constitutionalism

• The text. The Forty second Amendment (1976) added Article 48A, a duty of the state to protect the environment, and Article 51A(g), a duty of every citizen; courts read these with Article 21.
• Subhash Kumar v State of Bihar (1991). The right to life includes the right to enjoy pollution free water and air.
• The M. C. Mehta series. In the oleum gas leak case (1987) the Court laid down absolute liability for hazardous industries, with no exceptions; the Ganga pollution cases ordered the closure of polluting tanneries at Kanpur; and orders from 1998 moved Delhi's public transport to compressed natural gas (CNG).
• Vellore Citizens Welfare Forum (1996). The precautionary principle and the polluter pays principle are part of Indian law, as part of sustainable development.
• T. N. Godavarman Thirumulpad (1996). The Court read "forest" by its dictionary meaning whatever the ownership, and has supervised forest governance for decades through a continuing mandamus.
• M. K. Ranjitsinh v Union of India (2024). In a case on protecting the great Indian bustard, the Court recognised a right against the adverse effects of climate change under Articles 14 and 21.

Issues and way forward

• Overreach and its cost. Orders on matters of policy, such as administering cricket bodies or highway liquor bans, invite the charge that courts govern without accountability. A clear test of restraint, intervening only where a right is violated and the other organs have failed, would keep activism principled.
• Misuse of PIL. Publicity seeking and politically motivated petitions crowd the docket. Courts have begun to impose costs on frivolous petitions, and screening of PIL at admission should be stricter and consistent.
• Implementation gaps. Guidelines such as those in Prakash Singh remain partly unenforced, which shows that courts cannot replace administration. Laws passed by the legislature after judicial prompting, as with the 2013 Act after Vishaka, work better than open ended supervision.
• Accountability of the judiciary. A court that exercises legislative and executive functions must also accept transparency in listing, reasoning and appointments, so that its legitimacy rests on its method rather than on its power alone.

Common confusions

• Judicial review and judicial activism. Review tests a law or action against the Constitution and is a basic feature. Activism is a way of using that power to fill gaps, and is a matter of degree and debate.
• Judicial activism and judicial overreach. Activism enforces rights where others have failed; overreach takes over choices that the Constitution leaves to the other organs.
• Passive and active euthanasia. Passive euthanasia is withdrawing treatment and is legal under the 2018 judgement; active euthanasia, giving a lethal substance, remains illegal in India.
• Separation of powers in India and the United States. The United States separates personnel and functions; India separates functions but fuses the executive with the legislature, relying on checks and balances.

For the exam

• Keyword bank: separation of powers, checks and balances, Ram Jawaya Kapur, basic structure, judicial review, L. Chandra Kumar, public interest litigation, locus standi, epistolary jurisdiction, Article 142, judicial legislation, Vishaka guidelines, living will, continuing mandamus, polluter pays principle.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "With over five crore cases pending in Indian courts, the judiciary that supervises forests, prisons and police is itself struggling with its own docket, which is the central tension of judicial activism."
  • Introduction with a judgement: "In Ram Jawaya Kapur (1955) the Supreme Court held that India does not follow separation of powers in its absolute rigidity, but differentiates the functions of each organ and lets them check one another."
  • Conclusion: "Judicial activism is legitimate when it fills a vacuum to protect rights and steps back once the legislature acts, as Vishaka did for the 2013 Act."
  • Conclusion: "The balance of power in India is kept not by walls between the organs but by restraint within each, which is why the Court's own warning in Aravali Golf Club remains as important as its PIL jurisprudence."