Why the separation of the judiciary and executive is essential in a democracy

When laws restricting personal liberty are passed without debate, or under the cover of finance bills, the impact is felt by the citizens

While making laws is the domain of Parliament and state legislatures, interpretation of the law is the exclusive domain of the courts. On this year’s Independence Day, when the Chief Justice of India (CJI) called upon legislators to spend more time and effort in the consideration of laws, it elicited a strong reaction from a section of parliamentarians as an overreach on the part of the judiciary.

On this year’s Independence Day, when the Chief Justice of India (CJI) called upon legislators to spend more time and effort in the consideration of laws, it elicited a strong reaction (PTI)

The judiciary is tasked with the duty of interpreting laws. With the dilution over the years of the exclusionary rule, parliamentary debates, which form part of the history of legislation, constitute an interpretative aid to ascertain legislative intent. Lack of due deliberation and debate often leaves judges and lawyers clutching at straws to interpret the law. When laws restricting personal liberty are passed without debate, or under the cover of finance bills, the impact is felt by the citizens.

Juxtaposed with this was a recent comment by the President of India during the Constitution Day celebrations calling upon judges to temper remarks made by them in court.

Undoubtedly in an era of 24x7 media and live reporting from courts, even casual remarks and banter (par for the course in the pre-VC era) get reported both in mainstream media and go viral on social media. Reputations can be destroyed and the impact of a casual observation can lead to serious repercussions especially in matters relating to economic policies.

An incident comes to mind when during the case of the clinical trials before the Supreme Court, the judge’s observation midway during arguments that they would stay all clinical trials in India led to a PTI bulletin which created chaos. No stay was eventually granted, but the damage was done and the Government had to come out with a public clarification the same evening to settle anxious global investors who had millions of dollars invested in ongoing research projects, which would have come to a halt leading to disastrous consequences, both economic and in the field of medical research and health.

When the President (himself a lawyer by training) deems it appropriate to caution judges, a charitable view may be that he is pointing out a reality of the consequences of casual judicial utterances. However, the appropriateness of such a public comment by the Head of State impacts the mutual institutional respect that is crucial for maintaining the balance of power essential to our democracy.

The Constituent Assembly had, in fact, proposed Article 40A, which envisaged an explicit provision providing that there shall be a complete separation of powers between the legislative, executive and judicial organs of the State. Concerns were raised even then about undue influence over, and misdirection on the guardians of civil liberties who were appointed to interpret the Constitution and to administer justice, if the separation was not strictly observed.

Eventually Article 50, as part of the Chapter on Directive Principles, made it clear that the State would take steps to separate the judiciary from the executive.

Other than giving an oath to the CJI or taking an oath from the CJI, the President only signs warrants for the appointment of judges. Other than this, the President’s brush with judicial functioning is either when a Presidential Reference is made under Article 143 on matters of public importance or when the President grants pardon under Article 72 against a judgment of conviction or a sentence in a criminal case.

As the French philosopher, Baron de Montesquieu aptly stated, there is no liberty, if the judicial power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with oppression.

This is why we often need to remind ourselves of the Lakshman Rekha which exemplifies the separation of judicial and executive organs of the State.

Sidharth Luthra is a senior advocate and former additional solicitor general. Ketaki Goswami is an advocate practicing in Delhi

The views expressed are personal