Separation of power is a basic feature of our constitution. The Supreme Court, has always drawn a line demarcating powers between the three organs of the State — legislature, executive and judiciary.
However, of late, the line is blurring with growing examples where the judiciary has crossed the line to take on purely administrative functions or even legislative actions. This has happened because advocates don’t point out to the court that they are entering into the domain exclusively reserved for the other organs of the State. The counsels representing the State by not questioning the authority of the judiciary have made them to believe that their authority is co-terminus with the authority of the executive and legislature.
When I was arguing before a bench headed by Justice YK Sabharwal and challenged the court's authority to direct the government to issue a particular notification constituting the forest advisory committee, I was rebuked by the court. I was told that many attorney generals and solicitor generals have appeared in these proceedings and nobody questioned the court’s authority. I told the court that that if nobody objected to it earlier would not expand the jurisdiction of the judiciary. The government of India thereafter went ahead and issued the notification constituting the FAC of its choice.
Since courts are the ultimate arbiters, they should be as sensitive while crossing the line as they are while striking down an executive/legislative action. In a recent judgment, while declaring a legislative action to be unconstitutional, the SC said, “When we say that legislature has the competence to make laws providing which disputes will be decided by courts and which disputes will be decided by tribunals; it is subject to constitutional limitations, without encroaching upon the independence of judiciary and...separation of powers.”
Similar sensitivity should be exhibited by the court when questioned for encroaching into the domain of the executive or legislature. Advocates too should remind the court of this balance. The SC said in 2008. “Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the constitution and each organ of the State — the legislature, the executive and the judiciary — must have respect for the other and must not encroach into each other's domains.”
Vikas Singh is a senior Supreme Court lawyer and a former additional solicitor general.