The doctrine of separation of powers propounded by Montesquieu and subsequently theorized by various scholars have given a lot of importance to the concept of an independent judiciary. Most of the liberal democracies in the world today have a strong judiciary. India is the largest democracy with probably the strongest judiciary in the world.

The Indian constitution is the longest in the world and it has vested a lot of powers in the judiciary. Supreme Court of India is the premier judicial aid and the ultimate court of appeal which is established under the Constitution of India. A judgement passed by the Court is binding on every court of law within India. The power held by the court also gives it the authority to legitimize, or to strike down, any law passed by the legislature or the executive. This power is balanced by the proportionate responsibility that the Court bears.

Since the role of statutory interpretation is with the judiciary, constitution has been interpreted by the judiciary to give itself a lot of powers. Indian judiciary is famous for judicial activism and sometimes it has invited the criticism of judicial overreach by jurists, legislature and even the citizens. If there is an existing legal lacuna, judiciary is constitutionally authorized to interpret the other relevant statutes to formulate a new set of directions or the judiciary can refer it to the legislative bodies. In 2013, Supreme Court did refer the matter to legislature in Suresh Koushal case when it was approached to strike down section 377 of Indian Penal Code which criminalized homosexuality.[1]

In 2018 Supreme Court struck down the aforementioned section based on constitutionality. Perhaps this is the perfect example for American legal realism, which famously states that the law will depend on what the judge had for breakfast. Many would argue that a binary understanding would be unhelpful for accepting the complex role of the Supreme Court, but such an assertion would result in an unpredictable jurisprudence of the court which could not possibly be characterized into specificities.

Separation of powers does not necessarily mean that every organ of the government is independent of each other. In fact, there is more probability for it to mean that there is in fact a system of checks and balances which is making the system interdependent. In my opinion, checking the constitutional validity of an executive order or a law passed by the legislature is one of the most important works in governance because the moment such a validation comes into existence it is going to affect the lives of many people in the country.

Such an important function should be done with utmost care, without any bias or prejudiced notions, disregarding sentimental opinions and not being under pressure. For this to happen the judiciary should be independent from the other two organs. Since the executive in India is essentially the PM and his council of ministers who are also a major component of the legislature, there is a high possibility of legislations and orders being passed without much scrutiny. This scrutiny is essential for democracy because we are not in a Plato’s democratic structure where we have ideal people making the best legislations.

For such a scrutiny, there should be a system of checks which is served by an independent judiciary. However, we have witnessed and are still witnessing the power struggle between the judiciary and the cabinet in which the elected representatives are having a clear upper hand when it comes to a system of checks and balances. Whenever the judiciary goes against the executive or the legislature, there is a "Sword of Damocles", which means a sense of impending doom or the feeling that there is some catastrophic threat looming over those judges who stood between the interests of the majority legislators.

In the Supreme Court of India, judges generally sit in twos and threes. When it comes to deciding a constitutional matter, bench strength varies from five to thirteen in odd numbers as determined by the master of the roster, Chief Justice India. Article 142 of the Indian constitution gives a Supreme Court order the status of law of the land and Article 32 (which falls within the chapter of fundamental rights in the Constitution) gives the court scope for judicial review.

In numerous instances, the apex court has given directions and has interpreted Fundamental Rights to create new rights like privacy and values such as dignity. However, in this paper, I would argue why I consider Kesavananda Bharati v. State of Kerala, Three Judges Transfer Cases and Maneka Gandhi v Union of India are the most important cases where the Supreme Court of India has breached the doctrine of separation of powers to end up as a law making body.

According to Ronald Dworkin, politics and law are inseparable.[2] In a liberal democracy like India, politicians who ultimately end up as legislators are the ones who make laws. In the Indian history, the legal squabble of judiciary and executive to establish supremacy is well documented. The executive led by Indira Gandhi was constantly faced with the constitutional hurdle posed by the Supreme Court. In 1967, the eleven judge bench of the Supreme Court in I.C. Golaknath and Ors. vs State of Punjab and Anrs. held that the Parliament did not have the constitutional authority to alter or amend any fundamental right.[3]

Supreme Court also gave verdicts which were not in favour of Indira Gandhi government in Bank Nationalization and Privy Purses cases which were responded with the introduction of a succession of constitutional amendments that invalidated the Golak Nath, Bank Nationalisation and Privy Purses judgments.[4] All these amendments were challenged in the Supreme Court and it led to one of the landmark decisions, Kesavananda Bharati Sripadagalvaru v. State of Kerala, in which judiciary created a basic structure of Indian constitution. [5]

In 1970, Kesavananda Bharati, who was the religious head of "Edneer Mutt" in the state of Kerala, approached the Supreme Court against two of the Kerala government's land reform acts which imposed constraints on the administration of Edneer Mutt’s property. Even though the state of Kerala entreated its power vested under Article 21 whereby reasonable restrictions could be imposed on the right to liberty of an individual, the plaintiff considered his fundamental right to manage religiously owned property without government interference enshrined under Article 26 was violated.

The Supreme Court of India had thirteen judges in 1973 when this case was decided and all the thirteen judges heard this matter for sixty-eight days. Celebrated Indian jurist Nanabhoy Palkhivala, assisted by Fali S Nariman, argued for the petitioner. Around hundred cases were cited and the Attorney-General Niren De who represented the Union government and H.M Seervai who represented Kerala government made a chart comparatively analysing the Constitutions of around seventy nations.

All of these intense legal debates were done to answer whether the Parliament could modify, alter, revoke or abrogate the parts of the Constitution even to the magnitude of alienating all the fundamental rights. On a superficial level, Article 368 of the Indian constitution, did not encompass any sort of restriction on the powers of the Parliament in amending any provision of the Constitution.

There were no limitations on the Parliament from curtailing any citizen’s fundamental rights. However, there were recurrent amendments made in the Constitution which raised the legal qualm about whether there were any intrinsic or obscure limitations on the amending powers of the Parliament.

There were eleven separate opinions from the thirteen judges which were split in a sharply divided verdict of 7:6 where the majority held that the Parliament has the constitutional authority to amend any part of the Constitution only if those amendments did not deleteriously alter or regressively amend the basic structure or the essential features of the Indian Constitution.

The basic structure would entail principles of federalism, secularism, etc. Irked by this decision of the Supreme Court, as well as alleging political and economic disturbances, Indira Gandhi declared a nation-wide emergency in which Justice AN Ray of the Supreme Court got elevated as the Chief Justice contravening the practice of considering the next senior most judge for the post of Chief Justice.

Unsurprisingly, Justice Ray was the senior most judge who had a dissenting opinion in Kesavananda Bharati. Justice Ray tried to review the case and overturn the verdict but he did not get the support from fellow brother judges and hence it was unsuccessful. Till date there has been no review for this case and this judgment has been cited in various other judgments which concreted the basic structure doctrine in the Indian constitution.

Hypothetically, if the majority of the Supreme Court decided the contrary, India would most probably have deteriorated into a tyrannical State or had parliamentary sovereignty like China where it is a one party state. Subsequently, the Constitution would have gradually lost its authority. This is the reason why I strongly believe that Kesavananda Bharati v. State of Kerala is the most important of all landmark decisions and judicial construct of a basic structure doctrine is one of the instances where the judge [bench] acted as a creator of law.

During the emergency, the tussle between judiciary and executive continued and the matter of judicial appointments became a hot topic of discussion in the legal fraternity. From 1982 to 1998, in a series of three cases popularly known as Three Judges Cases, the Supreme Court cemented the concept of an independent judiciary as a matter of doctrine of separation of powers. In S P Gupta v. Union of India popularly known as the First Judges case in 1982, the seven judge bench of the Supreme Court used the literal rule of statutory interpretation to the word ‘consultation’ present in Article 124 and Article 217 of the Indian Constitution.[6]

The Supreme Court held that the recommendation of the Chief Justice has to be construed to be simply consultative in nature and the ultimate pronouncement in the case of appointment of judges has to be left as the prerogative of the Executive. This decision was severely criticised in academic spheres on the grounds that the judicial appointments were susceptible to partisan influence and fraught the independence of judiciary.

There were rising demands from the legal fraternity for an amendment to the Constitution for limiting the discretionary power of the executive in the judicial appointments. The121st Law commission report which came in 1987 recommended the establishment of a judicial commission for judicial appointments.[7] In 1993, Supreme Court Advocates-on-Record association approached the Supreme Court against this recommendation.[8]

Since this matter was already decided by a seven judge bench in S P Gupta v. Union of India, a nine judge bench was constituted to look into the matter. The majority in this case held that the word ‘consultation’ should be construed in a broader sense and the literal interpretation should not be used. According to the Court, a kind of purposive interpretation was to be used for the “constitutional philosophy” and “independence of judiciary”.

It was also held that the recommendation of the Chief Justice in the ‘consultative’ procedure has to be reached after deliberations with the next two senior Judges in the Supreme Court. The Court also held that the recommendation of the Chief Justice has prevalence, for the purposes of Article 124 (2) and Article 217(1).

In Re Presidential Reference which is popularly known as the Third of Three Judges Cases, a judgment was delivered by the Supreme Court which was legally obliged to give a reply to a question of law regarding the constitutionality of establishing the collegium system in the Second Judges Case to, K. R. Narayanan who was the then President of India.[9]

The Court held that the recommendation of the Chief Justice has to be the result of deliberation with the collegium which comprised of Chief Justice and the next four senior most judges of the Supreme Court. The Court also held that the opinion of these five judges regarding all the recommendations should be kept in a written form. The multiplicity of senior most Judges in the materialization of the recommendation of the Chief Justice is accentuated as a system of check and balance contrary to the possibility of favouritism or arbitrariness.

From the above three cases ranging for almost two decades, we can conclude that after constructing the basic structure doctrine, judiciary invented the collegium system for the appointment of judges. Rather than an abstract idea like Basic Structure, the Supreme Court made changes in powers of judicial appointment with this sort of judicial activism.

This is a creation of law by judiciary and this has been followed since. In 2014, National Judicial Appointments Commission (NJAC) was unanimously enacted as an amendment to the constitution by the Parliament and passed by the legislature of twenty [out of twenty-eight] States in India. The NJAC replaced the collegium system in appointment of judges. However, the constitutionality of NJAC was challenged in the Supreme Court by a group of lawyers and in a 4:1 verdict, the Court declared NJAC to be unconstitutional as independence of judiciary is a part of the Basic Structure doctrine.[10]

The third case in which the bench acted as a law making person is Maneka Gandhi vs Union of India which was decided in 1978.[11] In Satwant Singh Sawhney vs D. Ramarathnam, a five judge bench of the Supreme Court held that the right to travel overseas is within the realm of Article 21.[12] To circumscribe this decision in 1967, the Parliament legislated Passports Act of 1967.[13]

This act permitted the administrative establishments to confiscate the passport of any person if such an act is indispensable to the importance of integrity and sovereignty of the nation or the safety of the nation or friendly associations of India with any nation, or common civic society. The explanations for such confiscations were also to be conversed with the aggrieved person but if the interest of the general public was being adversely affected, the rationale for impounding need not be disclosed. In Maneka Gandhi’s case, a notice was issued for surrendering the passport based on the rationale of interest of general public.

She was a renowned journalist who was not in cordial terms with the then prime minister Indira Gandhi. Upon the reception of the notice, she reverted to the administration requesting some unambiguously exhaustive explanations for surrendering her passport. However, the authorities responded that the explanations are not to be stated as it may contravene the interest of the general public.

Maneka Gandhi filed a petition under Article 32 of the Indian constitution as the capricious act of the authorities was in contravention to Article 14. Later the petition was modified with a prayer for enforcement of Articles 21, 19 (1)(a), 19(1)(g). Along with these major constitutional contentions, Maneka Gandhi also argued that the order is invalid as her right to be given a fair hearing was not allowed. She construed it a violation of one of the principles of natural justice audi alteram partem, which affords every individual a right to be heard where a judgement is to be made involving that person.

This petition unswervingly brought into question the validity and constitutionality of A.K. Gopalan v. State of Madras, which was decided by a six judge bench in 1950.[14] It was held that law under Article 21 does not ineludibly be in conformity with the principles of natural justice and even the arbitrary or unreasonable laws are constitutionally valid as long as it is “procedure established by law”. However, the minority opinion held by Justice Fazal Ali flagged a liberal approach for the interpretation of Article 21. He opined that the procedure established by law should be just, fair and reasonable.

The seven judge bench in Maneka Gandhi case followed Justice Fazal Ali’s opinion and extended the ambit of Article 21 exponentially. The seven judge bench gave an undivided decision which only had some concurring opinions and this overturned A.K. Gopalan case. This may just seem like a mere overturning of another judgment but the Court established something new in the process. Even though the expression used in Article 21 is not the “due process of law” but “procedure established by law”, even the procedure has to be reasonable and not arbitrary. The court held that the element of fairness should be encapsulating the procedure.

When we analyse the Constitutional Assembly debates about the question of whether there should be a ‘due process’ clause or procedure established by law, we can easily conclude that the framers of Indian constitution did not want the due process clause because of past experiences in different countries where laws made in public interest would be stifled due to tedious litigation by individuals contesting them on grounds of due process. Instead they decided to have the procedure established by law phrase in Article 21.

However, the Court opined that that the constitution makers would not have intended to plant a self – explosive shell in the soul of the constitution. The Court opined that the drafters of this constitution intended for the protection of the “people of India” and GolakNath judgment’s interpretation of Article 21 would be counter-productive to the protection intended by the Constitution. It was also held that there is a distinctive and inclusive connection amongst the provisions of Articles 14, 19 and 21. This judgment created the ‘golden triangle’ of Indian constitution which every law must pass to have the constitutional validity.

With this judgment, the Court held that the Fundamental Rights enshrined under Articles 14, 19 and 21 are inclusive of each other and they have to be read together. In this respect, Justice V R Krishna Iyer has opined that “no Article in the Constitution is an island in itself”. Justice Bhagawati held that even the procedural laws should meet the elements of Articles 14 and 19 to be a constitutionally valid legislation under Article 21. Another major observation of Justice Iyer in the circumstance of travelling overseas is that since travel makes liberty worthwhile, no individual could be reprimanded off his/her right to travel.

The new interpretation of Article 21 paved the way for judicial activism in India. After this judgment, judiciary began inserting almost all possible political, socio-economic and cultural rights under the ambit of Article 21. For a third world country which accounts for biggest malnourished and poverty stricken citizens, right to clean air, clean water, freedom against noise pollution, access to speedy trial and access to free education were guaranteed by the Supreme Court at least on paper. This is why, I believe that this case created a big shift in jurisprudence of India and this is one of the best examples where the bench created something which was not existing in the constitution.

Consequences
Apart from these three major decisions I have mentioned above, judiciary has received the flak of academicians and legislators for unnecessary judicial overreach. The Supreme Court was widely criticized for giving directions regarding regulating the bursting of crackers during Diwali and the people who construed this as an infringement of their cultural rights engaged in protests. Similarly, the Supreme Court mandated all the cinema halls to play national anthem and mandated everyone present in the cinema hall to show respect to the anthem by standing up.[15] There was a ban on the sale of alcohol along the National and State highways by the Supreme Court.

[16] Even though the notice by the Union Government barred only the alcohol outlets alongside National Highways or those adjoining the National Highways, the Court ended up establishing a prohibition within a distance of five hundred metres under Article 142. Furthermore, despite the lack of any notification by the State governments, the Court extended the ban to State highways as well. The state governments were not parties to this matter and this was a case of judicial overreach which resulted in a lot of people being unemployed.

The Supreme Court [Judiciary] of India has given judgements both in favour of and against the executive. However, the judgements against the executive has not been received well by it. The reactions to such judgements are very biased. For example, in 2017 the Uttarakhand High Court Chief Justice K.M. Joseph was not recommended to the Supreme Court collegium because in the judgement he held that president's rule in the state of Uttarakhand was unnecessary and constitutionally invalid.[17]

The state of Uttarakhand was ruled by the INC party and the central government was led by the BJP. BJP wanted president’s rule in the state which was ruled by one of its opposition parties in the centre. This is a recent example in which the executive has worked against the independence of judiciary.

The stiffness between the Supreme Court and the central government over judicial appointments had been exposed in the significant manner when the former Chief Justice of India TS Thakur broke down at a conference of judges and Chief Ministers.[18] In 1987, the Law Commission had indorsed the total judicial strength to be forty-thousand, at fifty judges for one million people. Thirty odd years down the line, even with an addition of twenty-five crores to the Indian population, the judiciary’s current strength is a mere eighteen-thousand with the pendency of cases above three crores.

The Supreme Court with its thirty-one judges, has a backlog of 81,583 cases, assigning an unbearable case load of more than 2,500 cases for a sitting judge.[19] We have to remember that every bench of Supreme Court comprises of more than one judge so the situation is much grimmer as one bench only takes up one case at a time. This situation leads to hindered justice and raises questions about the quality of justice that is bestowed.

Aftermath of Mohammed Ahmed Khan v. Shah Bano Begum case is one of the instances where legislature overturned a progressive feministic judgement of the Supreme Court by enacting The Muslim Women (Protection of Rights on Divorce) Act 1986 which had a negating effect on the judgement.[20] This was such a demoralizing act for the judiciary by the legislature. This was very similar to the Indira Gandhi regime during 1966-1977 where the judges of High Courts as well as the Supreme Court were denounced by executive orders. Ms. Gandhi came back to power in 1980 and there was an adulatory letter written to her by the then Chief Justice of India P. N. Bhagwati.[21]

This can be construed as an adverse effect of ten years of executive dominance on judiciary which resulted in a sitting Chief Justice of the apex court to act in such a paranoid way. In 1980, Judges' Transfer case was heard by a seven-judge Constitutional Bench which was set up to deal specifically with the interpretation of the Constitution.

This bench had to offer the government carte blanche to hire judges including the ones in the Supreme Court, impeach the temporary judges and transfer High Court judges without the usual consent of the Chief Justice of India, with an exception of such transfers in masses. Essentially, for all pragmatic purposes Ms. Gandhi had been given legitimized legal authority to manage the judiciary the way she wanted. We can see that the when judiciary was given a choice to select between judicial independence and survival, they went ahead with survival probably because it ensured the safety of their careers. During the years between 1966 and 1977, India witnessed this power struggle the most in history.

As I have previously mentioned, the 24th, 25th, 26th 29th amendments were made in the constitution to overcome the decisions of the Supreme Court in the Golak Nath (1967), Bank Nationalization (1970), and Privy Purses (1970) cases. After that came Keshavananda Bharati v. State of Kerala in which judiciary made the basic structure immune to amendments. The very next day after this judgement Justice A.N. Ray was appointed as the Chief Justice of India by overlooking three other senior judges who were the part of the bench which heard Keshavananda Bharati case.

This was a clear case of executive compromising the independence of judiciary. After Indira Gandhi’s assassination and elections, the Supreme Court could revive some of its lost pride or tarnished image with some judgements like the Three Judges Transfer case and upholding judgements of Minerva mills and Keshavananda Bharati in many other occasions. The autonomy of Supreme Court was finally established in 1998 in the last one of Three Judges case where the court explicitly held that the collegium system is the only way in which judges could be appointed. The striking down of NJAC is another way by which the judiciary tried to stop executive from acting against the independence of judiciary.

The adverse influence of executive on judiciary is very prevalent even in contemporary times. The appointment of the former Chief Justice of India, P Sathasivam, as the Governor of Kerala was the first time that a former Chief Justice of India become a Governor. His appointment was alleged to do be a repayment to his judgment which quashed the second FIR against the BJP president Amit Shah in the Tulsiram Prajapati case which happened in April 2013.[22] This was contradictory to BJP’s ideological position because the party was constantly ascertaining that the former Chief Justices should not be given post-retirement jobs.

The situation became much better but the exercise of power by executive on judiciary is still very much prevalent. The misfortune is that a few of the judges, who wants to save their careers, are undermining the very institution that is the source of their strength. The judges cannot be the ones who should be solely held responsible for this. They cannot be asked to put their own profession in danger by going against the executive. For this power struggle to end there should be a clear independence of judiciary which must be guaranteed by the executive.

The system of selecting judges must be kept within judiciary alone. Only then the Supreme Court can do something to limit the vesting of large amounts of power in the executive by evolving certain norms that guide executive action.

To conclude, all the three cases mentioned above are considered to be land mark judgements of the Supreme Court. Judicial activism of the Supreme Court have resulted in the judges creating new laws. As every judge is bound by statute, decisions are arrived at by using different methods of statutory interpretation. Perhaps better legislators with more competence could absolve the judiciary’s burden of creating laws. Till then judiciary might have to intervene on the pretext of upholding constitutional morality and sometimes it might lead to the necessary evil judicial overreach as judges are humans who could err.

End-Notes:

1. W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
2. Patterson, Dennis M. “Dworkin on the Semantics of Legal and Political Concepts.” Oxford Journal of Legal Studies, vol. 26, no. 3, 2006, pp. 545–557
3. 1967 AIR 1643, 1967 SCR (2) 762
4. Baxi, Upendra. “ON HOW NOT TO JUDGE THE JUDGES: NOTES TOWARDS EVALUATION OF THE JUDICIAL ROLE.” Journal of the Indian Law Institute, vol. 25, no. 2, 1983, pp. 211–237.
5. (1973) 4 SCC 225: AIR 1973 SC 1461
6. AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
7. http://lawcommissionofindia.nic.in/101-169/Report121.pdf
8. Writ Petition (civil) 1303 of 1987
9. AIR 1999 SC 1, RLW 1999 (1) SC 168, 1998 (5) SCALE 629, 1998 Supp 2 SCR 400
10. WRIT PETITION (CIVIL) NO. 13 OF 2015
11. 1978 AIR 597, 1978 SCR (2) 621
12. 1967 AIR 1836, 1967 SCR (2) 525
13. THE PASSPORTS ACT, 1967 [Act No. 15 of 1967 dated 24th. June, 1967]
14. 1950 AIR 27, 1950 SCR 88
15. https://economictimes.indiatimes.com/news/politics-and-nation/national-anthem-in-cinema-halls-centre-urge-supreme-court-to-modify-order/articleshow/62419192.cms?from=mdr
16. https://economictimes.indiatimes.com/news/politics-and-nation/highway-liquor-ban-sc-clarifies-order-says-no-ban-within-city-limits/a
17. https://www.thehindu.com/opinion/editorial/impasse-ends/article24595931.ece
18. https://www.indiatoday.in/magazine/cover-story/story/20160509-chief-justice-of-india-tirath-singh-thakur-judicial-system-law-cases-828809-2016-04-27
19. http://lawcommissionofindia.nic.in/reports/report245.pdf
20. AIR 1985 SC 945
21. https://www.thehindu.com/opinion/lead/a-controversial-inheritance/article19150883.ece
22. https://www.thehindu.com/news/national/justice-sathasivam-to-be-sworn-in-as-kerala-governor-on-sept-5/article6376629.ece