"While widening the scope of Judicial Review beyond constitutional boundaries, the court has usurped the powers of the executive and legislature." Discuss giving your opinion.

Published: September 24, 2017

 
The doctrine of separation of powers was devised as a method of “checks and balances” so that the three organs work in tandem and also check each other’s arbitrariness. However, Supreme Court, as guardian of the constitution, has got a supervisory role through its weapon of judicial review / judicial activism. Many a times, SC has diminished the executive / legislature and has empowered itself with more powers. In the Singh v. State of Punjab case, Supreme Court adopted the residuary test which said that the executive power of the state is what remains after legislative and judicial powers are separated and removed.
Thus, a question arises whether the judiciary has overstepped and encroached into and usurped the powers of executive and legislature. Such encroachment and usurpation seems to be evident from the below examples:

  • In 2003, CBI ordered investigation into alleged Taj Heritage Corridor scam, in which Mayawati faced charges of cheating and forgery.
  • In 1996, Supreme Court ordered all coal based industries around Taj Mahal to be relocated by April, 1997 or switch to natural gas.
  • The Supreme Court ordered the Delhi government to come up with a plan to clean Yamuna and get it cleaned.
  • In Delhi Land Sealing drive, Supreme Court ordered MCD to shut around 15000 illegal commercial establishments operating in residential areas.

There are numeral other examples. In recent times, NGT has also blocked many if the decisions of executive related to environment.
My Opinion
The three organs of the government have been assigned specific roles by the Constitution as per the theory of separation of powers. However, interpretation of the provisions of the constitutional law as well as other laws of the land have been left with the judiciary and due to this, the judicial review marginally tilts the scales in favour of court. This power flows from Article 13(2) of the Constitution, which says that the State shall not make any law which takes away or abridges the fundamental rights guaranteed to the citizens and any law inconsistent with this provision shall be deemed void. However, like any other body of administration, judiciary can also be plagued by corruption, nepotism and hunger for power. The autocracy of judges is tyranny of unelected and more dreaded because there is no recourse against it. Thus, there is a need of judicial restraint along with judicial activism. Judiciary should not cross the lines drawn by constitution and should not meddle with the everyday affairs of executive.

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