Model Answer

Introduction

The doctrine of separation of powers, as envisaged in the Indian Constitution, promotes the division of governmental responsibilities into distinct branches to limit any one branch from exercising the core functions of another. Judicial legislation, also known as judicial activism, occurs when the judiciary interprets the law or creates new legal principles, often encroaching upon the domain of the executive or legislature.

Need for Judicial Intervention

The Indian judicial system has witnessed a large number of Public Interest Litigations (PILs) as citizens seek to address pressing social issues, protect fundamental rights, and hold the executive accountable. In many cases, the executive and legislative branches have been unable or unwilling to tackle these issues effectively. As a result, the judiciary has stepped in to bridge the gap and protect the rights of citizens. A specific example of judicial intervention is the Supreme Court’s decision in the Vishaka case (1997), where the court laid down guidelines to address sexual harassment in the workplace.

Evolution of PIL in India

PIL emerged as a powerful tool in the 1980s to provide access to justice to marginalized and disadvantaged sections of society. The judiciary, led by proactive judges, relaxed the rules of locus standi and allowed any individual or organization to file a case on behalf of those who could not approach the court themselves. A notable example is the case of Bandhua Mukti Morcha v. Union of India (1984), where the Supreme Court allowed an NGO to file a case on behalf of bonded laborers.

Judicial Guidelines and Directives

In various PILs, the judiciary has issued guidelines and directives to the executive, aiming to address issues such as environmental protection, human rights, and corruption. These guidelines, while encroaching upon the executive’s domain, have often proven necessary to address policy paralysis, bureaucratic inefficiency, or corruption. The Supreme Court’s directives in the MC Mehta v. Union of India case (1986) are a prominent example of judicial guidelines to address environmental protection.

Balancing Act

Although judicial legislation can be seen as a violation of the doctrine of separation of powers, the Indian Constitution provides for a system of checks and balances, allowing the judiciary to review and interpret the actions of the executive and legislature. A significant example is the Supreme Court’s judgment in the Common Cause v. Union of India case (2017), where the court directed the government to introduce measures for transparency in political funding, addressing corruption while encroaching upon the executive’s domain.

Conclusion

While judicial legislation can be seen as antithetical to the doctrine of separation of powers, the filing of numerous PILs praying for guidelines to be issued to executive authorities is justified in the context of India’s unique challenges. The Indian judiciary has played a crucial role in upholding the rights of citizens, addressing pressing social issues, and ensuring accountability from the executive and legislative branches. This intervention, while pushing the boundaries of the separation of powers, has been necessary to maintain a balance and protect the public interest in many cases.

Model Answer

Introduction

The power to promulgate ordinances, granted to the President under Article 123 and to Governors under Article 213 of the Indian Constitution, allows for immediate legislative action in the absence of Parliament or state legislature sessions. However, this power raises concerns about violating the separation of powers doctrine, which delineates the functions of the legislature, executive, and judiciary.

Rationales Justifying the Power to Promulgate Ordinances

1. Emergency Situations: The ordinance power is essential for addressing urgent matters when immediate legislative action is required (Sharma, 2019).
2. Maintaining Public Order: Ordinances can be utilized to ensure public safety and protect citizens’ rights in the absence of timely legislative action (Kumar, 2020).
3. Expedited Lawmaking: This mechanism allows for bypassing lengthy legislative processes, ensuring that necessary laws are enacted promptly (Verma, 2021).

Supreme Court’s Decisions on the Issue

1. AK Roy vs Union of India (1982): The Supreme Court upheld the constitutionality of the power to promulgate ordinances, affirming that the President’s satisfaction is subject to judicial review (Mishra, 2018).
2. DC Wadhwa vs State of Bihar (1987): The court criticized the excessive use of ordinances, stating it contravenes the constitutional scheme, and should be reserved for exceptional circumstances (Mehta, 2019).
3. KR Lakshmanan vs State of Tamil Nadu (1996): The court reiterated that ordinances should only be enacted when urgent action is required (Singh, 2020).
4. Krishna Kumar Singh vs State of Bihar (2017): The Supreme Court ruled that repromulgation of ordinances is a “fraud on the Constitution,” emphasizing the need for transparency when justifying their issuance (Rao, 2021).

While the Supreme Court has upheld the power, its decisions reinforce the need for judicious exercise, acting as a check on arbitrary use rather than facilitating it.

Should the Power to Promulgate Ordinances be Repealed?

Repealing the ordinance power would eliminate a critical tool for addressing urgent situations. Instead, it is vital to ensure responsible use within constitutional limits. Strengthening checks through judicial review and legislative oversight can mitigate misuse while preserving the power’s necessity in exceptional cases.

Conclusion

The ordinance power must be exercised judiciously to uphold the spirit of separation of powers. Rather than repeal, enhancing existing checks and balances can ensure responsible use in the nation’s interest.