Note on Separation of Powers:

Separation of Powers:
The principle underlying the doctrine of 'separation of powers' is widely
accepted, but the extent of separation varies from country to country.
Classification of powers as legislative, executive and judicial is not free
from difficulty at times. The framers of the Indian Constitution had the
advantage of noticing other democratic constitutions and their
operation. They did not favour a rigid separation of powers. The
functions of different branches of Government are discernible. The
Constitution does not contemplate assumption, by one organ of the
functions that essentially belong to another. Prof. K.C. Wheare
classified the Indian Constitution as quasi-federal in character. The
powers of legislation are divided between the States and the Union of
India. The Executive, the Legislature and the Judiciary are free to act
within their spheres. The exercise of executive and legislative powers is
subject to judicial review.

Important Cases related to separation of powers

I.C.Golakhnath v. State of Punjab:

Facts:

The family of Henry and William golaknath were in possession of over

500 acres of farmland in Jalandhar, Punjab. Under the Punjab security
and Land Tenures Act, the government held that the brothers could
keep only thirty acres each, a few acres would go to tenants and the
rest was declared surplus. This was challenged by the family of
golaknath in the courts. Further, this case was referred to the Supreme
court in 1965. The family filed a petition under Article 32 challenging
the 1953 Punjab Act on the grounds that it denied them their
constitutional rights to acquire and hold property and practice any
profession (Article 19 (f) and (g) and to equality before the protection of
the law (Article 14). They sought to have the seventeenth amendment –
which had placed the Punjab Act in ninth schedule – declared ultra
vires (beyond the powers). Golaknath. I.C v State of Punjab is one of
the landmark cases in the Indian history. With its ruling, in this case,
the court developed jurisprudence around what is known as the
doctrine of basic structure. The court in 1967 ruled that the Parliament
can not curtail any of the fundamental rights enshrined under the
constitution of India.
Issue:
Whether the parliament has the absolute power and the power to
amend the fundamental rights enshrined under the constitution or
not?
Held:
This was the 11 bench Judgment. The matter was decided in favor of
petitioner by the ratio of 6:5. Before this judgment the parliament used
to have full autonomy on making the law. The legislatures have used
Article 368 extensively to make legislations that had violated
fundamental rights provided under Part III of Indian Constitution in
one or other way. Keeping this view in mind the judges in majority held
that the parliament has no right to amend the fundamental rights.
These are fundamental rights are kept beyond the reach of
parliamentary legislation. Therefore, to save the democracy from
autocratic actions of the parliament the majority held that parliament
cannot amend the fundamental rights enshrined under Part III of the
Constitution of India The majority said that fundamental rights are the
same as natural rights. These rights are important for the growth and
development of a human being.
Conclusion:
According to the doctrine of ‘separation of power’ enshrined in our
Constitution, Parliament and the state legislatures in India have the
power to make laws within their respective jurisdictions. But, this
power is not absolute in nature. The Constitution rests with the
judiciary and the power to adjudicate upon the constitutional validity
of all laws also rests with the judiciary. The case of Golaknath is a kind
of victory of “rule of law” because it made it clear that even though the
lawmakers derive power from the Constitution to make law but at the
same time they too are not above the law. This case reinforced the faith
of the citizens that the law is supreme, not the one who makes it
(Parliament), neither who implements (Executive) it and nor the one
who interprets it (Judiciary).

Keshavananda Bharti v. State of Kerela:

Facts:
Keshvananda Bharati was the chief of Edneer Mutt which is a religious
sect in Kasaragod district of Kerala. Keshvananda Bharti had certain
pieces of land in the sect which were owned by him in his name. The
state government of Kerala introduced the Land Reforms Amendment
Act, 1969. According to the act, the government was entitled to acquire
some of the sect’s land of which Keshvananda Bharti was the chief. 

On 21st March 1970, Keshvananda Bharti moved to Supreme Court

under Section 32 of the Indian Constitution for enforcement of his
rights which guaranteed under Article 25 (Right to practice and
propagate religion), Article 26 (Right to manage religious affairs), Article
14 (Right to equality), Article 19(1)(f) (freedom to acquire property),
Article 31 (Compulsory Acquisition of Property). When the petition was
still under consideration by the court, the Kerala Government another
act i.e. Kerala Land Reforms (Amendment) Act, 1971. After the
landmark case of Golaknath v. State of Punjab, the Parliament passed
a series of Amendments in order to overrule the judgment of the
Golaknath case. In 1971, the 24th Amendment was passed, In
1972, 25th and 29th Amendment were passed subsequently. All the
three Amendments were challenged in the present case.
Issue:
1. Constitutional validity of all the three Amendments.
2. The extent to which the Parliament can exercise its power to amend
the Constitution.
Held:
The court upheld the 24th Constitutional Amendment entirely but the
1st and 2nd part of the 25th Constitutional Amendment Act was found
to be intra vires and ultra vires respectively. The court also held with
the majority of 7:6 that Parliament can amend any provision of the
Constitution to fulfill its socio-economic obligations guaranteed to the
citizens under the Preamble subject to the condition that such
amendment won’t change the basic structure of the Indian
Constitution. But the minority was still reluctant to provide full
autonomy to the legislators. This case to the some extent overruled
Golkhnath’s case. The court found that the word ‘amend’ which was
included in Article 368 does not refer to amendments that can change
the basic structure of the constitution. If legislators want to amend a
particular provision of the Constitution then such amendment would
need to go through the test of basic structure.
Conclusion:
In this case also judges use the doctrine of ‘separation of power’ and
admitted that legislators can amend any law provided that it doesn’t
violate doctrine of basic structure. A Bench of 13 Judges declared that
the power to "amend" does not include the power to abrogate the
Constitution or to damage or destroy the basic structure of the
Constitution. The power of judicial review too has been declared as a
basic feature of the Constitution.

Indira Nehru Gandhi v. Raj Narain:

Facts:
General elections were held in India to the 5th lok sabha in 1971,
wherein Indira Gandhi campaigned heavily for herself and her party
and steered the Congress to come out victorious in the said elections.
Raj Narain, the leader of Ram Manohar Lohia’s SSP stood against
Indira Gandhi in the elections of Rae Bareilly in Uttar Pradesh. Raj
Narain was extremely confident of his victory in the elections, he
ventured to such an extreme as to take out a triumph rally before the
declaration of results. Raj Narain was very disappointed when he lost
the elections with a huge margin. Raj Narain did not accept the defeat
and decided to appeal to nullify the election, accusing Indira Gandhi of
adopting corrupt practices during her election campaigns. On
24th April, 1971, he challenged the Prime Minister’s election by filing a
petition in the Allahabad High Court. After the Allahabad High Court
declared Indira Gandhi’s election void on grounds of corrupt practices,
Indira Gandhi made an appeal against the decision. The Supreme
Court was on vacation at that time so she was granted a conditional
stay. Thereafter, emergency was declared due to internal disturbance.
In the meantime, Indira Gandhi passed the 39th constitutional
amendment, which introduced Article 392A to the Constitution of
India. Article 392A stated that the election of the Prime Minister and
the Speaker cannot be questioned in any court of law, it can only be
challenged before a committee formed by the Parliament itself. Thus,
barring the Supreme Court from deciding Indira Gandhi’s case.
Therefore, the constitutional validity of the 39th amendment was
challenged.

Issue:
Constitutional Validity of 39th Amendment.

Held:
In Indira Nehru Gandhi vs. Raj Narain the Supreme Court declared the
Constitution (39lh Amendment) Act, 1975 void on the ground of
violation of basic structure. In that case the High Court of Allahabad
declared the election of Indira Gandhi (the then Prime Minister) to the
Lower House of Parliament as illegal, in a petition filed by her rival
candidate. While her election appeal was pending before the Supreme
Court and she was functioning as Prime Minister by virtue of an
interim order of stay, Parliament enacted the aforesaid impugned
Amendment to the effect that no election to either House of Parliament
of a person who held the office of Prime Minister at the time of such
election could be called in question, except before such authority and
in such manner as might be provided for by or under any law made by
Parliament. It further provided that no law made by Parliament before
the commencement of the impugned Act shall apply or shall be deemed
ever to have been applied to or in relation to the election of an
incumbent Prime Minister to either House of Parliament and such
election shall not be deemed to be void under any such law and
notwithstanding any order made by any court before such
commencement declaring such election to be void, such election shall
continue to be valid in all respects and any such order or any such
finding on which such order is based and shall be deemed always to
have been void and shall have no effect. In terms of the Amendment
notwithstanding the judgment of the High Court declaring Indira
Gandhi's election to be void, the election was to remain valid. While
declaring the 39th Amendment void, Chief Justice A.N. Ray, held that
it violated the rule of law which is a basic feature. Another Judge, held
the amendment was subversive of the principle of free and fair election
which is an essential postulate and basic structure of the Constitution.
Yet another Judge, held that it was outside the scope of the constituent
power.
Conclusion:
This case is a classic example of why unfettered rights to legislate
should not be provided to legislators despite following the doctrine of
‘separation of powers’. There should be some check & balances
mechanism so that rule of law can prevails. Legislators while legislating
should keep in mind that India does not strictly follow the doctrine of
separation of power and therefore basic structure laid down in
Keshvananda Bharti’s case ought to be kept in mind while amending or
enacting legislations. If the legislation is in violation with basic
structure then judiciary can by exercising his power of judicial review
can overrule the legislation.

Ram Javaya Kapur v. State of Punjab:

Facts:

The Six petitioners reached the Supreme Court under Article 32 of the
Indian Constitution claiming that their Fundamental rights had been
violated. The petitioners’ contention was that the executive Government
of Punjab has no power to get engage in any business or to have
monopoly over the business of printing and selling text books.
According to the petitioners the Constitution guarantees separation of
powers between the three organs i.e. the legislature, the judiciary and
the executive. The legislature must first have to make a law and then
only the executive can carry out its functions accordingly. The counsel
for the petitioner relied upon Articles 73 and 162 of the Constitution to
prove his point. The petitioners further argued that even if the State is
competent to have monopoly over the trade or business for selling and
printing books, then it could not be done without a legislative sanction
and that legislation cannot violate article 19(1)(g) of the petitioners
which gives the petitioners a fundamental right to carry on any trade,
business or occupation.

Issues:
Over-lapping of Legislative, Executive & Judiciary.

Held:
It was held that the only validity of the doctrine in the Indian
Constitution is the separation of essential functions of the
departments. There are frequent overlaps in the functions and
membership in the three organs. The Parliament also undertakes some
judicial functions which are in violation of doctrine of separation of
power if it is looked at in the rigid sense. It is to be noted that these
judicial functions to be undertaken by the legislative body is laid in the
Constitution of India. The legislature also acts as a judicial body in
some circumstances like in case of impeachment of the president as
has been provided under Article 61. The issue of whether the
legislature can undertake judicial functions was addressed in the case
of Indira Nehru Gandhi v. Raj Narain where it was held that two
important conditions need to be fulfilled by legislature when they are
performing judicial functions. Firstly, the power should be expressly
provided to the parliament and second, the due process of law during
discharging the function must be upheld. Coming to the executive
department, though the separation of executive from the judiciary has
been provided, a thorough reading through the text of the Indian
Constitution makes it clear that the president can assume the
functions and responsibilities of both legislature and judiciary in some
specific cases. Referring to the legislative power, the Constitution of
India has expressly provided this power to the president in Article 123
and that to the Governor under Article 213. This power to make laws
can be exercised by the executive at the time of recess of the
parliament when an emergency is declared. The Court held that there
exists a certain degree of overlapping with regards to the legislative and
executive powers which is, in certain circumstances, assumed by the
judiciary.  Article 141 and 142 provides power to the Supreme Court of
India to make laws or pass a decree to ensure complete justice for the
people which is fundamentally the function of the legislature and
executive departments.

Conclusion:

Even today this judgment, Ram Jawaya Kapur v State of Punjab is an

important case as it tells about the doctrine of separation of powers
and checks and balances in the India. It also discusses about the
federal nature of our constitution as resembled to the British
constitution. The court held that with change in time the powers and
functions of the executive also changes and we cannot stick to a
particular definition for executive. The executive, not every time, needs
a legislative sanction for its functions. The functions of an executive are
not only limited to just military but includes several other functions
that comes within the broad definition of separation of powers.
Therefore, the Court held that the executive does not need any
particular legislation to sanction the act. The Court held that there are
times when these organs overlap each other’s functions. The court
accepted a non-rigid definition of separation of powers as it found that
in a rigid sense this doctrine would become an impractical one. It can
be said that his is a very important judgment dealing with the issue of
separation of power as exercised in India. The three organs of the
government i.e. the Executive, the Legislature and the Judiciary often
try to encroach each other’s prescribed field but with the doctrine of
separation of powers along with checks and balances, this situation
can be avoided. Although in this case this doctrine has not been
accepted in its rigid sense and it continues to do so till date. Also, it
was held that if the legislature or the executive violates the
fundamental rights of persons or violates any provision of the
Constitution then such laws and actions can be challenged in the court
of law under article 32 of the Constitution.

Maneka Gandhi v. Union of India 1978

FACTS
The petitioner, Maneka Gandhi was a journalist whose passport was
issued on June 1, 1976, under the Passport Act 1967. The regional
passport officer, New Delhi issued a letter dated July 7, 1977,
addressed to Maneka Gandhi in which she was asked to surrender her
passport under section 10(3)(c) [4] of the Act in the public interest
within 7 days from the date of receipt of the letter. As soon as the
petitioner got the notice of such impound, she responded to the
authorities asking for specific detailed reasons as to why her passport
shall be impounded as provided in Section 10(5) [5] of the Passport Act.
The authorities, however, answered that the reasons are not to be
specified in the “interest of the general public”. In response, the
petitioner filed a writ petition under Art 32 for violation of fundamental
rights guaranteed under Articles 14, 19 and 21 of the Constitution
alleging that Section 10(3)(c) of the Act was ultra vires the constitution
ISSUES
 Are the provisions under Articles 21, 14 and 19 connected with each
other or are they mutually exclusive?
 What is the scope of the phrase “Procedure established by law” in
Article 21?
 Whether the right to travel abroad resides in Article 21?
 Is a legislative law that snatches away the right to life reasonable?

JUDGEMENT
The petitioner’s plea that the impugned provision, S. 10(3)(c) of the Act
was violative of Article 14 was rejected by the SC as the term “interests
of the general public” is not at all vague. But on the other hand, the
Government is the best judge on assessing the interest must have the
discretion to impound a passport on this ground. However, the Court
held that impounding the passport without a hearing was not valid.
But in the Court’s view, a post-decisional hearing would satisfy the
requirements of justice.
With respect to the violation of Article 19, the court held that the
impugned order was not violative of either Article 19(1)(a) or 19(1)(g).
The court recognised the extraterritorial application of Article 19 and
held that these rights were conceived by the Constitution makers not in
a narrow-limited sense but in their widest sweep. On the question, if
the right of free speech and expression can be effective only if the right
to travel abroad is ensured, the court held that a guarantee for a
fundamental right does never mean that every activity which facilitates
the exercise of that fundamental right could also be guaranteed. A
contrary position would lead to absurd results upsetting the entire
scheme of Article 19(1). Therefore, the right to go abroad could not ‘in
all circumstances’ be regarded as included in the freedom of speech
and expression. Section 10(3)(c) of the Act, which authorised the
imposition of restrictions on the right to go abroad by impounding of
passport, could not, therefore, be held to be void as offending Article
19(1) (a) or (g) as its direct and inevitable impact was on the right to go
abroad and not on the right of free speech and expression or the right
to carry on trade, business, profession or calling.
With regards to Article 21, the court held even though the phrase used
in Article 21 is “procedure established by law” instead of “due process
of law” as found in the American constitution, the procedure must be
free from arbitrariness and irrationality.Even though the Constitution
makers must be respected, but they never intended to plant such a self
– a destructive bomb in the heart of the Constitution. The court
widened the scope of “personal liberty” clause under Article 21. It was
held that the scope of “personal liberty” is not be construed in a narrow
and stricter sense. The court said that personal liberty has to be
understood in the broader and liberal sense. The court obligated the
future courts to expand the horizons of Article 21 to cover all the
Fundamental Rights and avoid construing it in a narrower sense.
The court overruled AK Gopalan case and has declared in
unmistakable terms for the first time that legislation, as well as an
executive act, must meet the new due process requirements in Article
21. Moreover, it overruled the position in Gopalan case that the
fundamental rights under Article 19 and 21 are standing separately
and mutually exclusive to each other. In the present case, it was held
that there is a unique relationship between the provisions of Article 14,
19 & 21 and every law must pass the tests of the said
provisions.Justice Bhagwati held that even if there is a law prescribing
a procedure for depriving a person of “personal liberty” that law has to
meet the challenge of Article 19 and the procedure established by law
in Article 21 must answer the requirement of Article 14.
It was held that Section 10(3)(c) was not violative of Article 21 as the
procedure established by law complied with the principles of natural
justice. Justice Bhagwati held that a post-decision hearing would do
justice in the case under scrutiny. Different from what other judges did
he quashed the impounding order and directed the return of the
impounded passport to the petitioner.The court held that Section 10(3)
(c) & 10(5) is an administrative order, therefore, open to challenge on
the grounds of mala fide, unreasonable, denial of natural justice and
ultra vires.The court also suggested the government to ordinarily
provide reasons in every case and should rarely use the prerogative of
Section 10(5) of the 1967 Act.
CONCLUSION
This decision restored the people’s faith in the judicial system and a
guarantee that their fundamental rights will be protected. The court
departed from its earlier position in the AK Gopalan case which held
that right to life and personal liberty can be restricted by the procedure
established by law even if it is not fair and reasonable. In this case, this
regressive view was discarded by the court and held that that
procedure established by law meant procedure that eventually was
reasonable fair and just.
Indian judiciary through this case took up a much-needed active role
in the policies of the nation. Rather than being silent spectators to the
policies or passive onlookers to lack thereof, Indian judiciary rightly
protected the citizens by judicial activism. This case must not be
conflated with Indian courts are overreaching rather is a result of
legislative and executive inaction that deprive citizens of the basic
freedom guaranteed by Article 21. Maneka Gandhi amongst other
landmark judgement opened floodgates for judicial activism wherein
the Court were vested power to adjudge if a particular action, matter,
policy or even law was just, fair and moral.
This decision rendered void the plain and simple meaning of ‘procedure
established by law’ and introduced for the first time the concept of ‘due
process of law’ into the Indian constitution. The court also accepted
that Right to Travel Abroad as a very important component of Right to
Liberty, if this right is not granted, liberty is distorted. By this
judgement, the court increased the scope of Article 21 of the
Constitution and made it the duty to interpret Article 21 in a manner
which serves the people’s interest at most.

HUSSAINARA KHATOON & ORS. v. HOME SECRETARY, STATE OF

BIHAR:

Facts:

The present case was related with the rights of the under trial
prisoners on habeas corpus petitions and their subsequent release. It
portrayed a sad state of the administration of justice in the State of
Bihar. A large number of persons which even included women, children
were behind the bars and were waiting for the trial from many years.
Many of these prisoners were charged with the minor offences that
would just award them with imprisonment for some months yet they
were in the jails since long as they were not subjected to fair trial. The
state of Bihar was even directed to file a revised chart which clearly
mentions the year-wise break-up of the under-trial prisoners after
segregating the prisoners into two categories viz. the ones charged with
minor offenses and others who have been charged with major offenses,
this direction was not carried out by the state.
The petition showed that the under-trial prisoners who have done
minor offences are languishing in the jail for more than 5-10 years,
without any trial. These people were poor and hence they could even
not afford to furnish bail.
Held:
It was upheld that such a procedure which keeps the people behind
bars without trial for such a long period of time cannot be regarded as
reasonable, just or fair, ergo it is not in conformity with the
requirements of Article 21. Bhagwati, J., in this case observed that
although the right to have a speedy trial is not explicitly mentioned as
a fundamental right in the Indian Constitution, yet it is implicit in the
broad sweep and content of Article 21. In Hussainara case, the Court
re-emphasized the fact that there should be expeditious review to
withdraw the cases against under-trials who are behind the bars for
more than two years without any trail. The Respondents had submitted
that the delay in the disposal of cases is caused due to the time experts
take to deliver their opinion. But, the Court dismissed this contention
and reiterated that the investigation must be completed within a time-
bound program in respect of under trials and also gave further
directions that need to be followed by the administration in order to
quickly dispose of the cases of under trials. The Court considered the
affidavits filed in response to its earlier orders and passed further
directions. As the earlier directions of the Court were not followed,
thereby the Court ordered release of under trials who were behind the
bars for periods more than the maximum term which could have been
imposed upon them if they were tried. It was observed by the Court
that detaining the people for so long is explicitly against the law and
also violative of the fundamental right of prisoners under Article 21.
The Hon’ble Supreme Court even cited the Hoskot case wherein it was
recognized that the right to free legal services for the poor and the
needy is essential facet of reasonable, fair and just procedure which is
implicit in the fundamental right under Article 21. The court also
directed the State to provide free legal aid to the poor so that they are
not deprived of their right to apply for the bail.

Conclusion:

According to the Doctrine of ‘Separation of Power’ it is the job of

legislature to enact laws and judiciary job is to adjudicate them.
Traditionally, courts do not issue directions to the Executive to
introduce or to the Legislature to enact a particular legislation, or
require the Executive to exercise its discretion in a particular manner.
The Supreme Court has been resorting to interim legislation in areas
not covered by any Act or executive instructions. For instance
recognizing the importance of speedy trial and consider this right of
speedy trial as Fundamental right.

Navtej Singh Johar v. Union of India:

Facts:

Navtej Singh Johar (petitioner) who was a dancer and identified himself
with the LGBT (Lesbian, Gay, Bisexual, and Transgender) community
filed a writ petition in the court seeking inclusion of  right to sexual
autonomy and right to choose the sexual partner within the ambit of
right to life under article 21. He also sought the declaration of section
377 of the I.P.C. as unconstitutional. He contended that the language
of section 377 is vague and there is no intelligible differentia between
natural and unnatural sexual acts. He also said that section 377
discriminates on the basis of sexual partners and has a ‘chilling effect’
on freedom of speech and expression by denying the expression of
one’s sexual identity through choice of romantic partners. Also, section
377 violates the right to privacy by putting the LGBT people in fear of
humiliation due to their lifestyle. The respondent (Union of India) left
the question of the constitutional validity of section 377 to the wisdom
of the court. They, however, contended that the acts of homosexuality
were against the concept of constitutional dignity.

Issues:

 Whether section 377 violates articles 14 and 15 of the

constitution?
 Whether section 377 violates the right privacy under article 21?
 Whether section 377 has a ‘chilling effect’ on article 19 (1) (a) by
criminalizing gender expression by the LGBT community?

Held:
The Court held that it doesn’t matter how minuscule is the LGBT
section, they also have the right to privacy which includes physical
intimacy. Their choice of partner might be different but it does not
mean they will be prosecuted for that. Section-377 does curtail their
human dignity and their personal choice, therefore violating their
right to privacy which is covered under Article 21. The main objective
behind retaining section-377 is to protect women and children from
being abused and harasses by carnal intercourse but consensual
carnal intercourse which is performed by the LGBT community is
neither injurious to children nor women. Moreover, non-consensual
acts have already been referred to as an offence under section-375 of
IPC which implies that section-377 is redundant and discriminative
towards one section of the society and is therefore violative
of Article 14 of the Indian Constitution rendering it unconstitutional.
The court held that our Constitution being liberal, it is not possible
that right of choice will be absolute. Therefore some restrictions have
been imposed on the principal of choice.  Public order, decency and
morality are the grounds which can impose reasonable restriction on
the fundamental right of expression. The Court held that Section 377
is unconstitutional in the sense that it does not connect with the
criteria of proportionality and is violating the fundamental right of
expression of LGBT group. The Supreme Court declared that section-
377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of the
Indian Constitution and therefore overruled the judgment given in
Suresh Koushal annd ors. vs. Naz Foundation and ors. Moreover, it
also declared that section-377 will be governing only non-consensual
sexual acts committed against any adult and minor. 

Conclusion:

By now it is settled principle that India does not adhere strictly to the
separation of power doctrine. Judiciary also makes it clear that there
job is to not only adjudicate but also keep an eye on where legislators
are being ignorant on making legislations. In the estimation of an
ordinary Indian citizen the legislature and the executive have failed
miserably in their cherished duties towards the rights of LGBT
communities. It is under this situation that the judiciary has taken
an activist approach. Judicial activism has flourished in India and
acquired enormous legitimacy with the Indian public. However, this
activist approach by the judiciary is bound to create friction and
tension with the other organs of the state. Such tension is natural
and to some extent desirable.

Vishakha & Ors. v. State of Rajasthan:

Facts:
Bhanwari Devi was a Dalit government employee who was engaged in
spreading awareness about hygiene and education and running
campaigns against dowry and child marriage.  As a part of her
employment, she was helping a young girl who was forced to marry at
a young age by her parents. However, there were powerful political
personalities and influential people involved and she failed to stop the
child marriage from happening. She tried to resist and carried out a
rally but she was not able to stop the marriage from happening. In
order to take revenge for the rallies and campaigns instituted against
them, a group of people attacked Bhanwari Devi when she was
walking along the road with her husband. She was gang-raped by
these men.

Issue:
 Whether sexual harassment at the Workplace amounts to a
violation of Rights of Gender Inequality and Right to Life and
Liberty?
 Whether the court could apply international laws in the absence of
applicable measures under the existing? 
Held:
The judgement was given by a 3 Judge bench which held that the
fundamental rights provided under Article 14, Article 15, Article 19(1)
(g) and Article 21 of the Constitution of India are violated by the act of
sexual harassment. The lack of a law that would prevent sexual
harassment and provide women with a safe working environment was
acknowledged by the Hon’ble Supreme Court of India. Section 354
and 354A of the Indian Penal Code, 1860 were to be referred in any
case of sexual harassment but these provisions were not specific to
the issue at hand. This made the Hon’ble court realize the need for
proper and effective legislation that would deal with sexual
harassment. The Hon’ble Court took reference from the international
conventions to proceed with the case. It referred to the Beijing
Statement of Principles on the independence of Judiciary in the
LAWASIA region, to function as a guardian of citizens’ rights and
independently make laws in the absence of any legislative framework.
Then the Hon’ble court took reference from the provisions of
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). The Hon’ble Supreme Court framed the guidelines
to prevent sexual harassment at the Workplace, known as Vishaka
Guidelines that were to be treated as law declared under Article 141
of the Indian Constitution. These guidelines were the foundation for
The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013. 
Conclusion:
This response of this judgment was peculiar because on one hand
ordinary citizens of India welcome the judgment as it was landmark
step taken by judiciary by providing Vishakha Guidelines on the
other hand legislators and executive criticized this judgment as here
judiciary went one step forward and enters into the arena of
legislators. Though this is the clear case of judicial legislation and
usurpation of the power of the legislature, but ultimately it benefits
the people. When the legislature slumbers, judicial usurpation
obtains legitimacy and approval from the general public. It took 13
years to ultimately enact a legislature on sexual harassment. This
shows that if judiciary had restricted themselves by making
legislation in Vishakha’s case then it would have cause injustice to
many as there were no proper guidelines at that point of time to
combat sexual harassment.

SR Bommai v UOI:
Facts:
In 1989, the Janata Dal Government headed by Shri S.R. Bommai
was in office in Karnataka. A number of members defected from the
party and there arose a question mark on the majority support in the
house for the Government. The Chief Minister proposed to the
Governor that the assembly session be called to test the strength of
the government on the floor of the House. But the governor ignored
this suggestion. He also did not explore the possibility of an
alternative Government but reported to the president that as Shri
Bommai had lost the majority support in the house and as no other
party was in a position to form the government, action be taken
under Article 356(1). Thereafter, the proclamation was issued by the
president in April, 1989 whose validity was challenged by Bommai
before the Karnataka High Court through a writ petition on various
grounds. The Karnataka High Court ruled that the proclamation
issued under Article 356(1) is not wholly outside the purview of
judicial scrutiny. The satisfaction of the president under Article
356(1) which is a condition precedent for the issue of the
proclamation ought to be real and genuine satisfaction based on
relevant facts and circumstances. The scope of judicial scrutiny is
therefore confined to an examination whether the disclosed reasons
bear any rational nexus to the action proposed or proclamation
issued. The courts may examine as to whether the proclamation was
based on a satisfaction which was malafide for any reason, or based
on any wholly extraneous and irrelevant grounds. In such a situation,
the stated satisfaction of the President would not be a satisfaction in
the constitutional sense under Article 356. In the end, however, the
court dismissed the petition holding that the facts stated in the
governor’s report could not be held to be irrelevant and held that the
governor’s bonafides could not questioned as his satisfaction was
based upon reasonable assessment of all facts. The Court also rules
that recourse to floor test was neither compulsory nor obligatory and
was not a prerequisite to the sending of the report to the President.
Appeal was filed by Bommai in the Supreme Court against the High
Court Decision. Besides this, the Supreme Court was called upon by
the Central Government to decide the validity of five other
proclamations in the states of Meghalaya, Nagaland, Madhya
Pradesh, Himachal Pradesh and Rajasthan.

Issue:
Whether the president has unchained rules to proclaim Article 356(1)
of the Indian Constitution. If yes, what is the scope of the judicial
review in this regard?

Held:
Article 356 confers amazing power on the President. This power
should be utilised sparingly and with great caution. The court
pointed on comments made by Dr. B.R. Ambedkar in Article 356. He
thought that emergency conditions would appeal to the most unusual
situations. The court also approved the proposals of the Sarkaria
Commission regarding the use of Article 356. The Commission
suggested that before invoking Article 356 (1) noticed on certain
conditions, it must be given to the State. Every option should be
drained to contain the situation and all attempts to solve the problem
of State standard must be addressed. Though Article 356 does not
expressly address the dissolution of the Legislature, such powers are
implied in Article 356 (1) (a). Article 174(2) (b) allows the Governor to
adjourn the Legislative Assembly and the President and under Article
356 (1)(a) you delegate your powers and duties to both the
Government and the Governor. He dissolved the Legislative Assembly
as part of the announcement issued under Article 356(1) or by the
following order. The court that coordinated the power to dissolve the
legislature said so Article 356 (3) wants the proclamation to be laid
before both the houses of parliament. The President has the power to
refuse the Legislature under Article 356(1)(c) before the consent of the
announcement by the Parliament. Clause (3) of Article 356 is
considered to be a regulation of the powers of the President and not
the issuance of a Declaration, which may be obtained by the State
Government and the Council of State. In all cases where the
Department lost the support of the majority, it was assumed that the
appropriate course of evaluation of the strength of the Department
was a test under the House, but in the case wherever the holding of
the ground test was reflected was not possible. It was assumed that
the powers of the President under Article 356 of the Indian
Constitution are a constitutional power and not absolute power.

Conclusion:
In aforementioned cases the judiciary has called upon the executive
to perform its obligations under the constitution and the laws. While
this was and will continue to be desirable but in this case the
intervention of the judiciary can be classified as judicial overreach. In
the words of former Chief Justice J S Verma
 “…the judiciary should only compel performance of duty by the
designated authority in case of its inaction or failure, while a
takeover by the judiciary of the function allocated to another
branch is inappropriate. Judicial activism is appropriate when it
is in the domain of legitimate judicial review. It should neither be
judicial ‘adhocism’ nor judicial tyranny.”
The acknowledgement of this difference between “judicial activism”
and “judicial overreach” is vital for the smooth functioning of a
constitutional democracy with the separation of powers as its central
characteristic and supremacy of the constitution as the foundation of
its edifice.

Madras Bar Association v. Union of India:

Facts:
The Madras Bar Association filed the instant writ petition seeking a
declaration that provisions of the Tribunal Reforms (Rationalisation
and Conditions of Service) Ordinance, 2021 (“Ordinance”) and Section
184 of the Finance Act, 2017 as amended by the Ordinance are ultra
vires Articles 14, 21 and 50 of the Constitution of India inasmuch as
these are violative of the principles of separation of powers and
independence of judiciary, apart from being contrary to the principles
laid down by several earlier judgments of the Supreme Court.

Issue:
To find out the Constitutional Validity of Ordinance.

Held:
The Court while discussing this indispensable concept, said that the
doctrine of separation of powers, though not expressly engrafted in
the Constitution, its sweep, operation and visibility are apparent from
the scheme of the Indian Constitution. It forms part of basic
structure of the Constitution. The Constitution has made
demarcation, without drawing formal lines between the three organs
─ legislature, executive and judiciary, which is nothing but a
consequence of principles of equality enshrined in Article 14 of the
Constitution. Accordingly, breach of separation of judicial power may
amount to negation of equality under Article 14. On this point, the
Court recorded that independence of judiciary is a fighting faith of
our Constitution. It is cardinal principle of the Constitution that an
independent judiciary is the most essential characteristic of a free
society like ours and the judiciary which is to act as a bastion of the
rights and freedom of people is given certain constitutional
guarantees to safeguard independence of judiciary. An independent
and efficient judicial system has been recognised as a part of basic
structure of our Constitution. The Court in the instant petition held
that the first proviso to Section 184 which prescribes a minimum age of
50 years is an attempt to circumvent the direction issued in Madras
Bar Assn. case striking down the experience requirement of 25 years
at the bar for advocates to be eligible. Introduction of the first
proviso to Section 184(1) is a direct affront to the judgment of
this Court in Madras Bar Assn. case.” The Court was of the view that
the second proviso to Section 184(1), read with the third proviso, is
an affront to the judgment in Madras Bar Assn. case. The direction
issued in Madras Bar Assn. case for payment of HRA was to ensure
that decent accommodation is provided to tribunal Members. Such
direction was issued to uphold independence of the judiciary and it
cannot be subject matter of legislative response. Therefore, the
second proviso, read with the third proviso, to Section 184(1)
was declared as unconstitutional.

Conclusion:
Judiciary by declaring ordinance as unconstitutional makes it
clear that any legislation cannot be violative of basic structure
and the doctrine of separation of powers.

Tribunal Reform Act, 2021:

Tribunal Reform Act was passed by 127th Amendment. This Act is
hugely in criticism because just few weeks back the Hon’ble
Supreme Court has rejected the ordinance by declaring it
unconstitutional.
Can Parliament go beyond the directions laid down by Supreme
Court?

Doctrine of Separation of Power enables empowers the

Parliament to enact any legislature. They do not require
permission or any direction form judiciary for enacting the
legislature. It is also well settled principle in modern era that
judiciary can legislate if they find it is for the welfare of the
general public, the judiciary can also provide guidelines to the
legislators for enacting legislation. But those guidelines are
tentative in nature and it is not mandatory for legislators to
adhere those guidelines by making law. The legislators are free to
frame their own piece of legislation however, the legislation
should not violate the basic structure of the Constitution.