This article is written by Ekta Varshney and Anubhav Vashishtha.


Democracy spirit is its people and the power to decide whether the leaders are doing their job should alone be left to people’s discretion. At the same time, Democracy being the epitome of Civil Liberties, Judiciary is way too crucial.

Duties are always assigned keeping in mind the ability of the person and for protecting the sanctity of job one must do their job instead of encroaching in other’s work.

This article tries to make the limits and powers crystal clear. An attempt is made to show that if things would not be done as they are destined to be done, can lead to harmful consequences.


More than seventy years have passed but the three pillars of Indian democracy are still in a tug of war. Well if seen literally it sounds good because that is the sole reason for the separation of powers. Among many of its other specialities, Indian Constitution provides a long and detailed list of powers and duties of these organs for the smooth running of democracy. 

Constitution framers have vigilantly defined the working of various organs of state, so to avoid any sort of overreach or encroachment of power. Though we don’t have the doctrine of separation of powers in its absolute rigidity, the functions of all three organs are adequately differentiated, like Legislature and Executive have the power of governing, making laws, maintaining order and finance while the judiciary is endured with the power to ensure that these two pillars work within the constitutional limits. 

Separation of powers: Need and Importance

Our constitution framers were well aware of the fact that unlimited power into the hand of a person or group will result in an instrument of suppression, so to avoid such situation they embodied the idea of separation of powers in the constitution of India.

This system of separation of powers in a democracy is to prevent the abuse of power, it divides the tasks of the state into three branches i.e. legislative, executive and judicial, along with this separation of power, these power are interconnected so as to work as a checker on one another. 

Hence this system of separation of powers also called a system of checks and balances. The importance of the separation of powers was novelty explained by a French Thinker Montesquieu in his book “the spirit of laws” which broadly holds the field in India too.

Montesquieu writes : “When the legislative and executive up powers are united in the same person, or in the same body of magistrates, there can be no Liberty, because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no Liberty, if the judicial Power be not separated from the executive and legislative. 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 judges might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of excluding the public resolutions and of trying the causes of the individuals.” It is the basic constitutional jurisprudence that of there is law, judges can absolutely uphold it yet judges can’t make law and try to enforce it.

But by flouting the above principle, it appears that judiciary encroaching into the executive domain or in a matter of policy. For instance, orders have been passed by Delhi HC ranging from age criteria in schools, use and misuse of the ambulance, begging in public, the nature of buses we board, the size of speed breakers on Delhi roads, auto-rickshaw overcharging. These were the matters in which power of making laws, lies exclusively into the fiefdom of executive or legislature.

As fittingly pointed out by Hon’ble Mr Justice J.S. Verma, former CJ, in Dr K.L Dubey’s lecture series: “Judiciary has intervened to question a mysterious car racing down Tughlaq road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judges’ pool, monkey capering in colonies, stray cattle on the streets, clearing public conveniences etc. under the threat of use of contempt power to enforce compliance with its orders. Misuse of power to force railway authorities to give reservation in a train is an extreme instance.”

It should be recollected that courts can’t run the administration that’s why Policy matters, finance, educational or otherwise are best left to the judgement of executive. As court neither have competence nor resources to discharge it’s duties as executive. In contrast to governing body, Courts are not delegate bodies reflecting a wide scope of social intrigue, they should depend for information, lacking or misleading data welcomes unsound decisions.

What if a constitutional bench governing our lives without political or judicial accountability?

Neither we can call it democracy nor the rule of law. In many cases, the Court has propounded that judges must restraint themselves from playing the role of lawmakers. One of the outstanding legal mind Mr Felix Frankfurter who notably advocated the idea of judicial restraint prophesied that if judiciary encroach into the powers of other organs than there will be a reaction from them and in result judiciary will not be able to enjoy the same level of independence, so to maintain the independence of judiciary its very much necessary that judges should restraint themselves from being a policymaker. 

One such incident took place in the US. In 1933 Roosevelt took the office of President when the country was passing through a terrible economic crisis. To overcome this, he commenced a series of legislation which were mainly economic regulatory measures but these legislation were struck down by US Supreme Court. As a reaction, Roosevelt proposed to reconstitute the court with six more judges nominated by him. This threat was sufficient and it was not important to do it.

The court in 1937 suddenly changed its approach and began upholding the laws. Hence the idea propounded by Justice frankfurter was practical. The argument regularly given for encroachment into the area of administrating body is that the other two organs are not carrying out their responsibilities appropriately. If the argument is considered as legit then judiciary would be at the top in this radar as cases are pending in courts for over 50 years.

If executive and legislature are not functioning properly it is for the people to correct the defects, by exercising their franchise properly in the next elections and voting candidates who will fulfil their expectations or by other lawful methods like peaceful demonstrations.

In short, Judiciary has the power to destroy but not to construct.

Judiciary’s powers and limits

Judiciary is blessed with the power of declaring a statute unconstitutional. But the same need to be exercised with great care as declaring a legislation unconstitutional means standing against the will of the majoritarian legislature and which is against the spirit of Democracy. Professor James Brandley Thayer in his essay Origin and Scope of Constitutional law very specifically mentioned that the judiciary should only nullify a statute when the Legislation or some provisions of the Legislation are not in consonance with the Constitution or when it spares no room for rational question.

In need of the utmost care, two duties have been assigned to Judges i.e. ‘bridging the gap between law and society’ and ‘protecting the constitution and democracy.’ For fulfilling the former, the Judge must construe the meaning of the statute so as to fill the void in the society and for abiding second duty it has been suggested that due protection should be given to Democracy.

If we look at them, in the Indian context, they can be interpreted as creating a balance between the will of the people which people gave while Constitution came into force and their will with every elected Government.

In carrying out these duties Judiciary must not forget it’s limit, the limit of not creating law, as creation of laws is the work of the legislature. Also, the legislature must be provided with some liberty to experiment so as to give people what they need though the same must be within the limits of the constitution. In a case, State Ice Co. Liebmann, J Brandies said, ” Denial to the right to experiment may be fraught with serious consequences to the nation.” In Keshavnanda Bharti v. the State of Kerala the court propounded that the doors for error and trial should remain open for the legislature. In another case, the court held that the courts must presume that the legislature is aware of the needs of the people.

Judges should not forget that they have the power to destroy but not to create and this power to destroy is restricted by a positive presumption in favour of the legislation, until and unless there is a violation of civil liberties, court should restrain itself from putting any hurdle into the working of legislature and executive. In Charanjit Lal Chaudhary v. UOI, the court, by adopting Thayer’s doctrine of judicial restraint, propounded that there should be a positive presumption in favour of legislature, the burden should be on the person who attacks to show that the act has transgressed his rights. Furthermore, adherence with the rule of Construction is must. According to which if on one construction the act becomes ultra vires regarding the power of legislature while on other construction the statute can remain effective then the court must choose the latter, on the ground of positive presumption in favour of legislature and presuming that the legislature intended not to breach jurisdiction. 

As a solution to every problem can’t be written in Constitutions, not every situation can be dealt with in the law, the legislature being the representative of the people knows what can be good for them though it is acceptable that there can be an abuse of same. But on that ground alone, legislation can’t be struck down. Instead of the demolition of the act by the judiciary, it is better that its defects should be cured by the legislature. The fate of the legislature should be left in the hands of citizens rather than amending its mistakes in the four walls of the court. People, who are the kingmaker in democracy, have the power to vote, protest and can drag the chairs of elected in the next election.

Judicial Activism:

Supreme Court being the sentinel qui vie and protector of fundamental rights should come forward on its own to protect the basic rights of the people. Democracy being the torchbearer of civil liberties can’t be left only in the hands of legislative and executive. Nevertheless, these organs are representing the will of the people and are in a position to serve them but for some political gains or in lieu of greater good, they can forgo fundamental rights. That’s why these liberties have been put in Part III, exercisable against Legislature and Executive and protected by the safe guarder and protector Judiciary.

Indian Courts follow an activist approach because they know that freedom and liberty are essential for progress, be it social or economic. Thus judiciary must restrain these organs from flouting basic human rights without which every other thing will be futile.


To put it in simple words, the judiciary must exercise the power of judicial activism but it should be strait only to civil liberties. Until there is prima facie violation of fundamental rights Judiciary must restraint itself from getting in the path of people’s will. Any deviations from these can lead to serious consequences and can lead to the destruction of the very structure of Democracy and harm to the law of the land.

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