Daily Answer Writing
13 January 2021

Q) Is it justified to say that "The Court cannot be said to be completely powerless to grant a stay of any executive action under a statutory enactment".  Does this go against the principle of separation of power?

Source: https://indianexpress.com/article/india/court-enters-uncharted-territory-in-aadhaar-poll-bonds-took-another-stand-7144069/

Approach Answer:

Introduction: Recently, the Supreme court of India invoked its power of judicial review to put a stay on recently passed farm laws. This feature of judicial interference into legislative and executive matter is known as Judicial activism. This power is available to both Supreme court as well as high courts of India as both can enforce fundamental rights in India against both central and state laws.


Justification of Judicial activism

               • Constitutional mandate: Court has been given power to review any legislative or executive action under the Article 13 of the Indian constitution. This power is known as Judicial review. However, it is often seen that the courts indulge in Judicial activism overuse this power to expand or restrict the application of law.

               • Prevents from Executive or Legislative tyranny: It serves the purpose of saving the country from Executive and legislative excesses.

               • Prevents from tyranny of Majority. For example the relief provided to the LGBT community in the Naz foundation case or Navtej Jauhar case was not only against the opinion of the government but also against the opinion of the society in general.

               • Maintain Supremacy of the constitution: The legislature has over the years tried to change the basic features of the constitution such as suppression of fundamental rights below the PSPs. For example, Supreme court has created a Basic Structure doctrine with the help of powers under Art 13 to defend the constitution against any such efforts.


However, there is a great concern as regarding judicial review as it often goes against the principle of separation of power:

               • It is Undemocratic: Both executive and legislature are democratically elected organs of the government, whereas judiciary is not. Thus democratic principle says that Judiciary must not interfere in such matters and must restrict itself to the judicial sphere.

               • Lack of Clarity: Article 13 only mandates "all laws that are inconsistent with the provisions of the part III of the Constitution shall be void." However Supreme court has expanded it application to the 'Basic Structure', which is not well defined.

               • Creates Administrative delays: Often PILs are admitted by the courts on the administrative matters which delay the implementation of an order or an act. For example in the case of farm laws, Judiciary has not assumed the unconstitutionality of the laws and yet it had stayed them.

               • Reactionary: Several critics regard this as reactionary. It is criticized that Supreme court often takes a conservative approach in answering PILs.

               • Makes Parliament less responsible: As it looks towards the Supreme court to determine the constitutionality of a decision.

               • Judicial Tyranny: Often a single judge or double judge bench decides the fate of a law. This is also seen in the staying of the farm laws.


Conclusion: These precedents show that the Judicial review can be both helpful as well as destructive for the democratic functioning of the government. But, the constitution of India provides for the principle of balance of power so that no arm of government yields more power or absolute power.

Therefore, judicial review is justified. Although it must be used with restraint. The courts must act like an alarm clock to the legislature and executive and not the blood hound. A few incidents of its use are good as it helps in pulling the administration out of its slumber.


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