Home >Opinion >Columns >The judiciary mustn’t violate the separation of powers

Last week, India’s Supreme Court stayed the implementation of three farm laws in response to protests by certain farmer groups, continuing its interventions in important matters of policy. What is surprising, however, is that the court did not state any legal or constitutional basis for the stay order. Instead, the court intervened as a self-appointed mediator, because “the negotiations between the farmers’ bodies and the government have not yielded any result." In the process, the court has violated both India’s functional as well as structural separation of powers.

The court’s actions regarding the farm laws and protests have been critiqued by legal and constitutional scholars on multiple grounds. First, the lack of legal basis sets a dangerous precedent. Second, the court has neglected its main constitutional function of independent judicial review. When there are multiple challenges on the constitutionality of the farm laws for violating federalism, legislative procedure, etc., it is a very odd choice for the court to evade this function and instead act as a mediator. Third, even those who, unlike me, support judicial interventions in policy, have critiqued the lack of representation from all the parties.

This trend in the court’s actions goes beyond farm laws. It threatens the foundation of the separation of powers between the legislature, judiciary and executive in India. Power is distributed across different branches of government to create and maintain checks and balances. The framers of our Constitution were well versed with these ideas. The Constitution provides strong separation of powers between the judiciary and the legislature, and the judiciary and the executive. A slightly weaker form of separation of powers exists between the legislature and the executive. The Constitution grants the judiciary the power to review the constitutional validity of all legislation and executive action. Everyone, and most certainly the apex constitutional court of the country, should be well acquainted with the need for structural separation of powers.

But apart from preventing the concentration of power in a single branch of government, there is another pragmatic reason for this separation—division of labour and specialization of tasks, or the functional separation of powers. In 1776, Adam Smith gave us the theory of division of labour and specialization as the fundamental reason for the increase in productivity in a market. But Smith also talked about division of labour and specialization in the dispensation of justice. He argued that “The separation of the judicial from the executive power seems originally to have arisen from the increasing business of the society, in consequence of its increasing improvement. The administration of justice became so laborious and so complicated a duty as to require the undivided attention of the persons to whom it was entrusted." This does not undermine structural separation of powers and 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." Structural and functional separation go hand in hand.

The reasoning for the functional separation of powers is straightforward. The tasks attempted by each branch of government are different and complex, and require expert individuals and specialized systems. The legislature’s role is to aggregate voter preferences. This is done through representative democracy and feedback mechanisms between elections. The executive, with the bureaucracy at its disposal, is tasked with governing and executing complex tasks. And the judiciary specializes in reviewing evidence, complex legislation, and constitutional rules, and is incentivized to remain impartial.

Whether the legislature, executive and judiciary execute their assigned tasks perfectly or even adequately is debatable, especially in India. But even with imperfections, comparatively, between the three branches of government, the legislature is best designed and incentivized to aggregate preferences. The judiciary, specifically the Supreme Court, and High Courts, are best equipped to evaluate the constitutionality of laws. Taking on a new task that primarily belongs to the legislature because of a perceived policy failure does not mean the judiciary can actually accomplish the task at hand. It is not an elected representative body; and no special committee, no matter how eminent or impartial, can aggregate preferences the same way as an elected legislature. The court’s order on farm laws, dated 12 January 2021, on farm laws confirms this, as various farmer groups have indicated that they were not represented in the proceedings. No matter how well intentioned and impartial, the court can never represent and aggregate the preferences of over a billion people; even an inefficient Parliament will do better. This also holds true for the executive role that the court has taken on through its public interest litigation jurisprudence.

The court and Indian polity at large must be clear about the role of the judiciary. Violating the boundaries of functional separation of powers will fail, as the court is institutionally not equipped to legislate. And violating the structural separation of powers concentrates power in the judiciary, which will lead to a dictatorial instead of an impartial court. Despite its good intention to mediate during a crisis, the court must control these impulses to govern or legislate from the bench.

Shruti Rajagopalan is a senior research fellow with the Mercatus Center at George Mason University, US

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