JAMIA MILLIA ISLAMIA FACULTY OF LAW

CONSTITUTION ASSIGNMENT

• NAME: AYAN ANSARI

• STUDENT ID: 202202494

• COURSE: B.A.L.L.B (H) SELF FINANCE

• SESSION: 3RD SEMESTER 2023-24

TOPIC: SEPARATION OF POWER & JUDICIAL

ACTIVISM

SUBMITTED TO: PROF. ARIF WADOOD

 TABLE OF CONTENT

 ACKNOWLEDGEMENT

 INTRODUCTION

 SEPARATION OF POWER

 PRINCIPAL OF CHECKS AND BALANCES

 INDIAN OUTLOOK

 JUDICIAL ACTIVISM

> LANDMARK JUDGEMENTS

 JUDICIAL ACTIVISM IN INDIA

 CONCLUSION

 BIBLIOGRAPHY
ACKNOWLEDGEMENT

With immense pleasure and a profound sense of gratitude. I take

this opportunity to express my deep sense of gratitude to
PROFESSOR, ARIF WADOOD, Asst. Prof. Of
CONSTITUTIONAL LAW. Faculty of Law, JMI. His initial
inspiration, constant encouraging attitude and sound guidance
through every stage of the entire work has boosted me to complete
the present study successfully. I am fortunate and feel proud of
having worked under his supervision.
I must also acknowledge with thanks the help and cooperation
extended to me by the different internet websites. I express my
deep sense of regard and special indebtedness to my mother who
have always been a sense of inspiration for me and have provided
me with all the bits of help whenever needed.
Introduction

In the intricate fabric of democratic societies, the principles of separation of power and
judicial activism represent two foundational pillars upon which the rule of law and
governance rest. The delicate equilibrium between these two concepts has long been a subject
of scholarly debate, legal discourse, and public scrutiny. "Separation of Power and Judicial
Activism: Balancing Democracy and Justice" is a project that delves into this critical
interplay, seeking to understand, analyse, and ultimately contribute to the enduring dialogue
that shapes the dynamics between the judiciary and the other branches of government.

The concept of separation of power, attributed to luminaries like Montesquieu, defines the
division of governmental authority into three distinct branches: the executive, legislative, and
judicial. This division is fundamental to maintaining a system of checks and balances that
prevent any single entity from amassing unchecked power. On the other hand, judicial
activism is a legal philosophy through which courts interpret and apply the law beyond its
literal meaning to address societal issues and injustices. The intersection of these ideas often
leads to questions about the appropriate role of the judiciary, the extent of its power, and the
impact of its decisions on the broader political and social landscape.

This project seeks to navigate the complexities and implications of this interplay, examining
its historical evolution, contemporary manifestations, and its consequences for democratic
governance, social justice, and individual liberties. Through a multi-faceted exploration of
legal cases, political discourse, and societal perspectives, we aim to shed light on the tensions
and synergies that emerge when the judiciary exercises its powers to shape policy and protect
constitutional principles.

As we embark on this journey through the intricate realms of separation of power and judicial
activism, we invite you to join us in unraveling the intricate threads that weave the fabric of
our democracy and justice system, pondering the questions of balance, accountability, and the
quest for a more perfect union.
Separation of Power

Power corrupts and absolute Power tends to corrupt absolutely.”

The separation of powers is based on the principle of trias politica. The Doctrine of
Separation of Power is the forerunner to all the constitutions of the world, which came into
existence since the days of the “Magna Carta”. Though Montesquieu was under the erroneous
impression that the foundations of the British constitution lay in the principle of Separation of
Power, it found its genesis in the American Constitution. Montesquieu had a feeling that it
would be a panacea to good governance but it had its own drawbacks. A complete Separation
of power without adequate checks and balances would have nullified any constitution. It was
only with this in mind the founding fathers of various constitutions have accepted this theory
with modifications to make it relevant to the changing times1.

The Doctrine of “Separation of Powers”, a vintage product of scientific political philosophy

is closely connected with the concept of “judicial activism”. “Separation of Powers” is
embedded in the Indian Constitutional set up as one of its basic features. In India, the
fountain-head of power is the Constitution. The sovereign power has been distributed among
the three-wings:

 Legislature
 Executive
 Judiciary

The doctrine of separation of powers envisages a tripartite system.

The position in India is that the doctrine of separation of powers has not been accorded
constitutional status. In the Constituent Assembly, there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart
from the directive principles laid down in Article 50 which enjoins separation of judiciary
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers.2

Montesquieu’s Theory

According to this theory, powers are of three kinds: Legislative, executive and judicial and
that each of these powers should be vested in a separate and distinct organ, for if all these
powers, or any two of them, are united in the same organ or individual, there can be no
liberty.

1
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
2
Upadhyaya : Administrative law,(Central Law Agency,8th edition) p.48
The theory of separation of powers signifies three formulations of structural classification of
governmental powers:

1. The same person should not form part of more than one of the three organs of
the government. For example, ministers should not sit in Parliament.
2. One organ of the government should not interfere with any other organ of the
government.
3. One organ of the government should not exercise the functions assigned to any
other organ.

Principle Of Checks And Balances

The powers of Government were distributed between them in such a way that each checked
and was checked by the others so that an equipoise or equilibrium was achieved which
imparted a remarkable stability to the constitutional structure. It is from the work of Polybius
that political theorist in the 17th Century evolved that theory of separation of powers and the
closely related theory of Checks and Balances.

Importance

The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons why it is not accepted by a large number of countries in the world. The main object
as per Montesquieu in the Doctrine of separation of power is that there should be government
of law rather than having will and whims of the official. Also, another most important feature
of the above-said doctrine is that there should be the independence of judiciary i.e. it should
be free from the other organs of the state and if it is so then justice would be delivered
properly.

The judiciary is the scale through which one can measure the actual development of the state
if the judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a cent
percent chance of misuse of power. Hence the Doctrine of separation of power does play a
vital role in the creation of a fair government and also fair and proper justice is dispensed by
the judiciary as there is the independence of the judiciary.

Also, the importance of the above-said doctrine can be traced back to as early as 1789 where
The constituent Assembly Of France in 1789 was of the view that “there would be nothing
like a Constitution in the country where the doctrine of separation of power is not accepted”.
Also in 1787, the American constitution inserted the provision pertaining to the Doctrine of
separation of power at the time of the drafting of the constitution in 1787.3

3
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
Indian Outlook

In India, the doctrine of separation of powers has not been accorded constitutional status.
Apart from the directive principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not embody any formalistic and
dogmatic division of powers.

The Supreme Court in Ram Jawaya Kapur v. State of Punjab4, held:

“Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well said that our Constitution
does not contemplate assumption by one organ or part of the State of functions that
essentially belong to another.”

In Indira Nehru Gandhi v. Raj Narain5 ,Ray C.J.also observed that in the Indian Constitution
there is separation of powers in a broad sense only. A rigid separation of powers as under the
American Constitution or under the Australian Constitution does not apply to India. However,
the Court held that though the constituent power is independent of the doctrine of separation
of powers to implant the story of basic structure as developed in the case of Kesavananda
Bharati v. State of Kerela6 on the ordinary legislative powers will be an encroachment on the
theory of separation of powers. Nevertheless, Beg, J. added that separation of powers is a part
of the basic structure of the Constitution. None of the three separate organs of the Republic
can take over the functions assigned to the other. This scheme of the Constitution cannot be
changed even by resorting to Article 368 of the Constitution.

In Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was
pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise i.e.
the parliament does not have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions
of the three organs of the state. Also, the constituent Assembly Of France in 1789 was of the
view that “there would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted.” So if there is a provision then there should be proper
implementation and this judgment emphasis on that point only.

Also in I.R. Coelho vs. State of Tamil Nadu 7 ,S.C. took the opinion opined by the Supreme
court in Kesavananda Bharati case pertaining to the doctrine of basic structure
and held that the Ninth Schedule is violative of the above-said doctrine and hence from now
on the Ninth Schedule will be amenable to judicial review which also forms part of the basic
structure theory.

4
AIR 1955 SC 549.
5
1975 SCC 1, 61, para 136.
6
(1973)4 SCC 225: AIR 1973 SC 1461
7
AIR 2007 SC 8617
From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R.
Coelho v. State of Tamil Nadu in there has been a wide change of opinion as in the
beginning the court was of the opinion that as such there is no Doctrine of Separation of
Power in the constitution of India but then as the passage of time the opinion of the Supreme
Court has also changed and now it does include the above said Doctrine as the basic feature
of the Constitution.

JUDICIAL ACTIVISM

Definition

According to Black’s Law Dictionary judicial activism is a “philosophy of judicial decision-

making whereby judges allow their personal views about public policy, among other factors,
to guide their decisions.” Judicial activism is articulated and enforced by judicial rulings
suspected of being based on personal or political considerations rather than on existing law.
Judicial activism implies going beyond the normal constraints applied to jurists and the
Constitution, which gives jurists the right to strike down any legislation or rule against the
precedent if it goes against the Constitution. Judicial activism is premised upon the fact that
judges assume a role as independent policy makers or independent “trustees” on behalf of
society that goes beyond their traditional role as interpreters of the Constitution and laws 8.

Judicial Activism In India

Judicial activism in India means the power of the Supreme Court and the high courts but not
the sub-ordinate courts to declare the laws as unconstitutional and void if it infringes or if the
law is inconsistent with one or more provisions of the constitution. To the extent of such
inconsistency while declaring a law as constitutional and void the courts do not suggest any
alternative measures. According to SP Sathe “a court giving a new meaning to the provision
so as to suit the changing social or economic conditions or expanding the horizons of the
rights of the individual is said to be an activist court.”9

Landmark Judgments

a) AK Gopalan v. State of Madras10:

Significant decision was observed because it represented the first case where the court
meaningfully examined and interpreted key fundamental rights enlisted in the constitution
including article 19 and 21.[vii] A writ of habeas corpus was filed. The contention was
whether under this writ and the provisions of THE PREVENTIVE DETENTION ACT, 1950,
there was a violation of his fundamental rights which were article 13, 19, 21 and 22. The
counsel on behalf of the petitioner argued that the right to movement was a fundamental right
8
http://www.bigislandchronicle.com/2010/07/25/dispatches-from-curt-—-female-leaders-in-judiciary-and-
anticipated-post-scripts/
9
Judicial Activism in India ,Satyaranjan Purushottam Sathe, Oxford University
Press, 2002
10
A.K.Gopalan VS. State Of Madras (air 1950 SC 27)
under article 19 and hence the defence counsel must prove that the law of preventive
detention was a reasonable restriction as per the five clauses of article 19(2).

Judge restricted the scope of fundamental rights and by reading them in isolation of article 21
and 22 which provided guidelines for preventive detention. Foreign precedent like cases of
UK and US were used in limiting the scope of article 21. Justice Kania said that the term due
process prevented the courts from engaging in substantive due process analysis in
determining the reasonableness of the level of process provided by the legislature. He
remarked:-

The word “due” in the expression “due process of law” in the American Constitution is
interpreted to mean “just,” according to the opinion of the Supreme Court of U.S.A. That
word imparts jurisdiction to the Courts to pronounce what is “due” from otherwise,
according to law. The deliberate omission of the word “due” from article 21 lends strength
to the contention that the justifiable aspect of “law”, i.e., to consider whether it is
reasonable or not by the Court, does not form part of the Indian Constitution. The
omission of the word “due”, the limitation imposed by the word “procedure” and the
insertion of the word “established” thus brings out more clearly the idea of legislative
prescription in the expression used in article 21. By adopting the phrase “procedure
established by law” the Constitution gave the legislature the final word to determine the
law.11

Fazl Ali’s dissent broadly construed the provision “procedure established by law” in Article
21 to encompass higher principles of natural law and justice, and not just statutory law. he
said that the Indian Constitution intended to incorporate the same language as the Japanese
Constitution and encompass “procedural due process” conception, he still cited to American ,
British and foreign precedent to support a much more expanded view of due process. They
were based on the principles of Natural Justice. Fazal Ali highlighted a series of US
decisions; the US Supreme Court recognised that the word law does not exclude certain
fundamental provisions. Drawing on British and US legal sources he argued for incorporating
procedural due process into article 21, guided by principles of Natural Justice in accordance
with universal, transactional and legal norms.

In the above case two major points were held: Art 19, 21 and 22 are mutually exclusive.
Art 19 was to not apply to a law affecting personal liberty to which art 21 applies. In the
above case, the restrictions under article 19 applied only on free people. Unless the state
arrested a person for making a speech, holding an assembly, forming an association or for
entering a territory, the arrest had to be EXAMINED under article 21. A “LAW” affecting
life and liberty could not be declared unconstitutional merely because it lacked natural justice
or due procedure. Hence article 21 provided no immunity against competent legislative
action.

b) Kharak Singh v. State of Uttar Pradesh12:

the petition under Article 32 of the Constitution of India challenged the constitutional
validity of Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon

11
Indian Bureau of Parliamentary Studies,1971
12
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
police officials by its provisions on the ground that they violate the rights guaranteed to
citizens by Articles 19(1)(d) and 21 of the Constitution of India. On the basis of the
accusations made against him, he had police constables entering his house and shout at his
door, waking him up in the process. On a number of occasions they had compelled him to
accompany them to the station and had also put restrictions on him leaving the town.

The judges made a breakthrough while interpreting and finding the connection between
article 19 and 21 by remarking that:

 If a person’s fundamental right under Article 21 is infringed the State can rely
upon a law to sustain the action; but that cannot be a complete answer unless
the said law satisfies the test laid down in Article 19(2) so far as the attributes
covered by Article 19(1) are concerned. In other words, the State must satisfy
that both the fundamental rights are not infringed by showing that there is a
law and that it does amount to a reasonable restriction within the meaning of
Article 19(2) of the Constitution. But in this petition no such defence is
available, as admittedly there is no such law.

 So the petitioner Kharak Singh could legitimately plead that his fundamental
rights, both under Articles 19(1)(d) and 21, were infringed by the State.
Hence, on these grounds the petitioner Kharak Singh was entitled to issue of a
writ of mandamus directing the respondent- State of Uttar Pradesh- not to
continue visit to his house.

Here, the majority adopted a restrictive conception of liberty that only extended to direct
infringement of the freedom of movement, and refused to recognize the existence of a right to
privacy. However this theory which was the minority judgement of J Subba Rao went on to
become the majority judgement in

c) Maneka Gandhi v Union of India:

In this case the Supreme Court restored the citizen’s faith in judiciary. The 3 landmark
judgements were depicting a great change in the thought process of the judiciary and had set
the stage for Judicial Activism to be introduced.

The Supreme Court not only broadened the meaning of “personal liberty” but also adopted
the theory of “due process” in “procedure established by law”. The court recognized that
when a law restricts personal liberty, a court should examine whether the restriction on
personal liberty also imposed restrictions on any of the rights given by article 19. The Court
held that personal liberty includes “a variety of rights which go to constitute the personal
liberty of man,” in addition to those mentioned in Article 19, and that one such right included
in “personal liberty” is the right to go abroad. The court also held that according to the “audi
alteram partem” theory, impounding Mrs. Gandhi’s passport without giving her a hearing
violated procedure established by law. These were principles of natural justice and fair
procedure. The court had to decide whether Mrs. Gandhi was entitled to a hearing before her
passport was impounded. It was resolved that as there was no post decisional hearing, the
impounding was UNCONSTITUTIONAL AND VOID.
Conclusion

Judicial activism connotes the assertive role played by the judiciary to force the other organs
of government to discharge their assigned constitutional functions towards the people. It has
held reinforcing the strength of democracy and reaffirms the faith of people in rule of law.
Judicial activism may have been force upon the judiciary by an insensitive and unresponsive
administration that disregards the interest of the people, and that the nation does not suffer
because of the negligence on the part of the executive and legislature.13

Former Justice S. H. Kapadia said Parliament and executive had well-defined powers under
the Constitution and these needed to be respected by the judiciary. “Legality and legitimacy
are important concepts and go hand in hand. If there is excess of judicial overreach, then the
legitimacy of judgments will be obliterated,” he warned.14

However judicial activism may be a welcome measure on in a short run where it helps in
maintaining the rule of law and allows one organ to sustain the administration of the country
when other organs are not performing. If it is practiced for a long time it may dilute the
theory of separation of power and the doctrine of checks and balances.

However at the end I would conclude by stating that judicial activism may be good for
protecting the fundamental rights of the citizens and protecting their interest from the vicious
bureaucrats and politicians but extreme activism will lead to overreach of judicial powers that
may lead to a misuse of power by the judges leading to arbitrary decision making as well
tyranny which may be against the rule of a democratic country and so to ensure that no
arbitrariness takes place judicial review should be practices by the respected Judiciary within
the purview of doctrine of separation of powers and checks and balances.

13
http://www.ndtvmi.com/b8/Dopesheets/ashishstutirandeep.pdf
14
http://timesofindia.indiatimes.com/india/Judicial-overreach-may-tilt-balance-of-power-CJI/articleshow/
15510771.cms
 BIBLIOGRAPHY

Primary Sources :

 Manupatra

 SCC ONLINE

 CONSTITUTION OF INDIA

Secondary Sources:

 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf

 Upadhyaya : Administrative law,(Central Law Agency,8th edition) p.48

 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf

 http://www.bigislandchronicle.com/2010/07/25/dispatches-from-curt-—-
female-leaders-in-judiciary-and-anticipated-post-scripts/

 Judicial Activism in India ,Satyaranjan Purushottam Sathe, Oxford

University Press, 2002