The Judiciary Mustn’t Violate the Separation of Powers

Context: Recent decision of the Supreme Court staying the implementation of the farm laws in response to protests by farmers, has been questioned for violating India’s functional and structural separation of powers.

Concerns with the decision:

• Court’s intervention was not backed by any legal or constitutional provision.
• Neglect of the constitutional function of independent judicial review: Instead of going into the constitutionality of the farm laws, the court decided to act as a mediator.
• Lack of representation: No matter how well-intentioned and impartial, the court can never represent and aggregate the preferences of over a billion people.

Issues with undue judicial interventions:

• Threatens constitutional mandate: which provides for separation of powers between the legislature, judiciary and executive in India with an aim to create and maintain checks and balances.
• Violates the principle of the functional separation of power: A separation based on the division of labour and specialization of tasks.
  • Moreover, Adam Smith believed that it is a fundamental reason for the increase in productivity in the market.
  • Smith recognized the importance of checks and balances when he wrote, “When the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to what is vulgarly called politics.”
  • Thus, structurall and functional separation go hand in hand.

Need for functional separation of power: Need for expert individuals and specialized systems due to the complex and varied nature of task performed by each branch of the government.

• Legislature’s role: to aggregate voter preferences through representative democracy and feedback mechanisms between elections.
• The executive’s role: governing and executing complex tasks through the bureaucracy.
• The judiciary: specializes in reviewing evidence, complex legislation, and constitutional rules, and is incentivized to remain impartial.

Conclusion: Despite its good intention to mediate during a crisis, the court must control these impulses to govern or legislate from the bench.